United States v. HensonUnited States v. Henson
Appeal from the United States District Court for the District of Kansas (D.C. No. 6:16-CR-10018-JTM-1)
Blair T. Westover (Beau B. Brindley, with her on the briefs), Chicago, Illinois, for Defendant-Appellant.
James A. Brown, Assistant United States Attorney (Duston J. Slinkard, Acting United States Attorney, with him on the brief), Office of the United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.
Before HOLMES, SEYMOUR, and MORITZ, Circuit Judges.
Defendant-Appellant Steven R. Henson (“Mr. Henson“) appeals his convictions and sentence related to his involvement in a drug distribution conspiracy in and around Wichita, Kansas. He raises four issues on appeal. First, Mr. Henson argues that we should vacate his convictions and remand for a new trial because the district court violated his Sixth Amendment rights by erroneously depriving him of chosen counsel. Second, Mr. Henson claims the district court committed reversible error by instructing the jury it could find the requisite mental state for his crimes based on a “deliberate ignorance” or “willful blindness” theory of knowledge. Third, Mr. Henson seeks remand for resentencing based upon the purported procedural and substantive unreasonableness of his sentence to life in prison. Fourth and finally, Mr. Henson asks us to reconsider a prior precedent and, in doing so, hold that one of the district court‘s jury instructions misstated the law. For the reasons explicated infra, we reject Mr. Henson‘s challenges. Accordingly, exercising jurisdiction under
I
During the events at issue in this case, Mr. Henson was a licensed physician specializing in pain management who operated the Kansas Men‘s Clinic, along with another medical office, in the Wichita, Kansas, area. In October 2014, the Drug Enforcement Administration (“DEA“) began investigating Mr. Henson after receiving calls from pharmacists complaining about his general practices and prescribing habits. See Aplee.‘s Resp. Br. at 2-3; see also, e.g.,
Perhaps the most critical “red flag” that complaining pharmacists identified was Mr. Henson‘s penchant for prescribing potent controlled substances in great quantities and in dangerous combinations. In particular, Mr. Henson was known to prescribe high doses and large quantities of opioids, such as oxycodone and methadone, and benzodiazepines, such as alprazolam, either alone or in combination. See Aplee.‘s Suppl. App., Vol. II, at 327-28 (Ms. O‘Malley describing prescriptions written by Mr. Henson for hundreds of doses of methadone, oxycodone, and alprazolam, with the quantity of some prescriptions so high that the daily dose was twenty pills); id., Vol. X, at 2636 (Tr. Steven Henson Test., dated Oct. 17, 2018) (Mr. Henson testifying that he prescribed a combination of methadone, oxycodone, and alprazolam “fairly frequently“).1
Drugs such as methadone and oxycodone generally depress an individual‘s respiratory system, see Aplee.‘s Suppl. App., Vol. VIII, at 2190-91 (Tr. Timothy Rohrig Test., dated Oct. 15, 2018), whereas drugs like alprazolam “depress the central nervous system, reduce breathing, and are ‘strong, hypnotic, sedative-type drugs,‘” Aplee.‘s Resp. Br. at 12 n.2 (quoting Aplee.‘s Suppl. App., Vol. VIII, at 2194); see Aplee.‘s Suppl. App., Vol. II, at 304 (Ms. O‘Malley describing the “very common” usage by “street consumers” of Schedule II narcotic painkillers, like oxycodone, in combination with Schedule IV benzodiazepines, like alprazolam, to “experience a greater, longer high“). In combination, opioids and benzodiazepines “can decrease breathing to the point that a person dies.” Aplee.‘s Resp. Br. at 12 n.2; see Aplee.‘s Suppl. App., Vol. II, at 304-05 (Ms. O‘Malley: “The Schedule II narcotics [like oxycodone and methadone] . . . [are] used in combination with a product . . . call[ed] . . . benzodiazepine . . . . They both reduce breathing. Especially the benzodiazepine, it‘s a central nervous system depressant, and the two in combination can . . . . decrease the breathing to the point that . . . . [y]ou can die.“).
Over the course of its investigation, the DEA uncovered several aspects of Mr. Henson‘s medical practice that led the agency to conclude he “was practicing without a legitimate medical purpose outside the usual course of professional practice, and that he was acting as a source of supply for street drug dealers.” Aplee.‘s Resp. Br. at 3; see Aplee.‘s Suppl. App., Vol. IX, at 2346 (Tr. Richard Morgan,
For example, DEA Special Agent Andrea Harrison, testifying at Mr. Henson‘s trial, said that when she visited Mr. Henson at the Kansas Men‘s Clinic on May 4, 2015—while working in an undercover capacity—Mr. Henson merely asked her the following: her name, date of birth, why she was visiting him, and whether she had pain. Mr. Henson was the only individual in the office during the appointment, and he did not have Agent Harrison “fill out any new patient paperwork,” examine her, “take [her] blood pressure or pulse,” or ask for any medical records. Aplee.‘s Suppl. App., Vol. IV, at 862-63 (Tr. Special Agent Harrison Test., dated Oct. 9, 2018). Instead, Mr. Henson asked Agent Harrison whether she was in pain generally, and after she stated that she suffered residual pain from two car accidents, he wrote her a prescription for 240, 30-milligram oxycodone pills. See id. at 864-67 (Agent Harrison testifying that Mr. Henson never asked her when the purported pain-causing car accidents occurred, whether she was hospitalized, or how much pain she was in, and that he only asked her the specific area where she had pain after he wrote the prescription). At a follow-up appointment on May 27, 2015, Mr. Henson wrote Agent Harrison another prescription for 240, 30-milligram oxycodone pills “[w]ithout asking [her] about the nature of her pain [or] whether the medication was helping or hurting her.” Aplee.‘s Resp. Br. at 4; see Aplee.‘s Suppl. App., Vol. IV, at 872-73, 875.
Beyond Mr. Henson‘s cursory examinations, investigators were also troubled by the fact that many of Mr. Henson‘s patients were drug abusers or were diverting and selling prescriptions obtained from him. See, e.g., Aplee.‘s Suppl. App., Vol. II, at 388, 443-49 (Tr. Jeremy Wojak Test., dated Oct. 4, 2018) (one of Mr. Henson‘s ostensible patients testifying about his drug abuse and his sale of drugs obtained via Mr. Henson‘s prescriptions); id., Vol. III, at 632-36 (Tr. Amanda Terwilleger Test., dated Oct. 5, 2018) (another of Mr. Henson‘s patients testifying that she and Mr. Wojak would pay cash to Mr. Henson to obtain prescriptions for hundreds of oxycodone pills to sell or to feed their addictions); id., Vol. XIII, at 3561-68 (Tr. Joel Torres Test., dated Oct. 10, 2018) (Mr. Henson‘s former patient testifying that Mr. Henson charged $300 cash for office visits; did not accept insurance; performed no physical examinations; and wrote Mr. Torres prescriptions for oxycodone, methadone, and alprazolam, which Mr. Torres then either sold or used to “get high” and feed his addiction); see also id., Vol. II., at 563-74 (Tr. Jordan Allison Test., dated Oct. 4, 2018) (Mr. Allison testifying about his oxycodone addiction and his practice of buying drugs from Mr. Wojak and either using them or selling them).
In particular, one of Mr. Henson‘s patients, Nick McGovern, became a major supplier and distributor of drugs based on his relationship with Mr. Henson. See Aplee.‘s Suppl. App., Vol. VI, at 1541-48 (Tr. Grant Lubbers Test., dated Oct. 11, 2018) (Mr. Henson‘s former patient testifying that he purchased pills from Mr. McGovern, who obtained them via prescriptions written by Mr. Henson, and that Mr. McGovern introduced Mr. Lubbers to Mr. Henson, who then wrote prescriptions directly
As well, despite being notified numerous times that his patients were diverting their medications, Mr. Henson continued his prescribing habits unabated. See, e.g., Aplee.‘s Suppl. App., Vol. X, at 2679, 2692-94 (Mr. Henson acknowledging that he was notified by pharmacies and family members that his patients might be diverting medications he prescribed to them, but admitting he did not stop prescribing medication to them); id., Vol. XV, Ex. 54jj (text messages from the father of one of Mr. Henson‘s patients to Mr. Henson, informing him that his son was diverting the medication prescribed by Mr. Henson in order to pay for his gambling habit); id., Vol. XV, Ex. 55kk (voicemail left by Lynn Harris, a United States Probation Officer, raising concerns that medications prescribed by Mr. Henson “may be getting diverted“); see also id., Vol. XV, Ex. 55dd (voicemail from pharmacists in Ponca City, Oklahoma, raising “red flags” about two of Mr. Henson‘s patients, who came into the pharmacy late at night and wanted to pay cash to fill high-dose and large-quantity prescriptions, despite recently filling similar prescriptions).
Based on the government‘s investigation, a Kansas federal grand jury indicted Mr. Henson on the following charges related to his medical practices:
Counts 1 and 2: conspiracy to distribute, dispense, and possess with intent to distribute prescription drugs outside the usual course of professional practice and without a legitimate medical purpose, in violation of
21 U.S.C. §§ 841 and846 ;Counts 3 through 16: illegal drug distribution or dispensing outside the usual course of professional practice without a legitimate medical purpose, in violation of
21 U.S.C. § 841 ;Count 17: illegal distribution or dispensing prescription drugs outside the course of professional practice or without a legitimate medical purpose that resulted in death, in violation of
21 U.S.C. § 841 ;Count 18: possession of a firearm in furtherance of a drug trafficking crime, in violation of
18 U.S.C. § 924 ;Count 19: knowingly making and using a false writing or document, in violation of
18 U.S.C. § 1001 ;Count 20: obstruction, in violation of
18 U.S.C. § 1509 ;Counts 21 through 25: money laundering, in violation of
18 U.S.C. § 1957 ; andCounts 26 through 31: money laundering, in violation of
18 U.S.C. § 1956 .
See Aplt.‘s App., Doc. 1, at 28-50 (Indictment, filed Jan. 12, 2016); Aplee.‘s Resp. Br. at 1-2.
At trial, Mr. Henson “did not challenge the government‘s claim that . . . [his] patients were either abusing or reselling their medications, nor that he issued the charged prescriptions.” Aplt.‘s Opening Br. at 2. Rather, his defense “was that he did not intentionally or knowingly issue any of the charged prescriptions outside the course of professional practice or without a legitimate medical purpose,” and that “he did not have any agreement with any of his patients to do the same.” Id. Specifically, Mr. Henson pointed out that many of his
The jury, however, was largely unpersuaded, and it found Mr. Henson guilty on Counts 1-17, 19-20, and 26-31. See Case No. 6:16-cr-10018-JTM, Doc. 373 (Verdict, filed Oct. 23, 2018).2 Mr. Henson filed a motion for a new
trial, which the district court denied. Thereafter, the court sentenced Mr. Henson to life imprisonment for his convictions—a sentence that fell within Mr. Henson‘s advisory guidelines range. Mr. Henson brings this timely appeal of his convictions and sentence.
II
Mr. Henson raises four issues on appeal. First, Mr. Henson claims that he was denied his Sixth Amendment right to counsel of choice based on an allegedly erroneous, pre-trial ruling by the district court finding his original counsel labored under a conflict of interest that could only be ameliorated through written waivers. Second, Mr. Henson argues the district court erred by instructing the jury on a “deliberate ignorance” or “willful blindness” theory of knowledge, when the government failed to proffer sufficient evidence supporting such an instruction. Third, Mr. Henson contends his sentence is procedurally and substantively unreasonable. Fourth, Mr. Henson requests that we revisit and overturn one of our prior precedents—and, in doing so, conclude that a jury instruction in his trial misstated the law.
We consider each issue in turn. In the end, we conclude that Mr. Henson‘s arguments on appeal are unavailing. Accordingly, we affirm his convictions and sentence.
A
In his first issue on appeal, Mr. Henson contends he is entitled to a new trial because he was denied his counsel of choice, thereby violating his Sixth Amendment rights. We begin by reviewing the procedural history relevant to this issue, after which we assess Mr. Henson‘s arguments in support of his counsel-of-choice claim. Ultimately, we do not reach the merits of this issue because we conclude Mr. Henson abandoned the issue in the district court by way of his attorney‘s voluntary withdrawal from the case. Mr. Henson has, therefore, waived appellate review of the issue.
Mr. Henson‘s counsel-of-choice claim relates to events that occurred pre-trial. Specifically, two weeks before Mr. Henson‘s trial was originally scheduled to commence, the government filed a motion styled “United States’ Motion to Determine Conflict of Interest.” See Aplt.‘s App., Doc. 200, at 51 (Gov‘t‘s Mot. to Determine Conflict of Interest, filed July 10, 2017). The government raised the possibility that Mr. Henson‘s then-counsel, Kurt Kerns, was laboring under a conflict of interest based on his past representation of two individuals involved in Mr. Henson‘s prosecution: (1) a government witness who Mr. Kerns had represented ten to fifteen years prior on aggravated battery charges in Kansas state court, and (2) Mr. Henson‘s former patient and co-defendant, Joel Torres,3 who had been represented by Mr. Kerns in three prior cases in Kansas state court—two involving drug distribution charges, and one involving a misdemeanor concealed weapons charge. The government contended that, because it was likely Mr. Henson‘s defense would be “that all [his] patients were addicts,” that they “all lied to [him],” and that “he had no knowledge” any of his patients were diverting drugs, it would be “reasonable to expect” that Mr. Kerns‘s cross-examination of his former clients would cover their drug abuse and whether such abuse “cloud[ed] their memor[ies] of the events to which they will testify.” Id. at 54. Under Kansas Rule of Professional Conduct 1.9(c), Mr. Kerns could
not rely on protected information or personal facts obtained through his prior representation for the benefit of Mr. Henson.4 Thus, in the government‘s eyes, Mr. Kerns‘s divergent ethical obligations—i.e., those owed to Mr. Henson and those owed to his former clients—would impair his ability to “adequately represent” Mr. Henson. Id. at 55. Considering the specter of this ethical dilemma, the government requested that the district court determine if conflicts of interest existed and, if so, whether they could be waived.
Responding to the government‘s motion, Mr. Kerns disputed that he labored under
unrelated to [Mr. Henson‘s] prosecution.” Id., Doc. 204, at 56 (Def.‘s Resp. to Gov‘t‘s Mot. to Determine Conflicts, filed July 13, 2017). Moreover, Mr. Kerns averred he had “no recollection of” these prior representations “whatsoever” and, therefore, “[t]here [was] no conflict” and “nothing to have either client waive.” Id. at 56-57.
The district court held a hearing on the government‘s motion on Tuesday, July 18, 2017. During the hearing, the court made the following remarks, which are integral to Mr. Henson‘s counsel-of-choice claim:
I am not as concerned about the [government witness‘s prior] battery charge, I don‘t think that . . . create[s] an actual conflict, even if drug use may have contributed or been one of the underlying factors in the battery but your prior representation of a co-defendant on a drug distribution charge, whether you have any memory of it or not, Mr. Kerns, makes Dr. Henson‘s interests materially adverse to your former client on a matter that‘s substantially related to the prior representation.
While I do not know what position Dr. Henson intends to take at trial, I don‘t think it‘s too far fetched to think that he likely will claim that his patients misled him and that he did not know that they were diverting drugs and that being the case, the interests of the clients are materially—your two clients are materially adverse and effective cross examination of the co-defendant probably is going to require you asking about his drug use and history.
And even if you no longer remember at all the representation, the fact that you were once privy to the witness‘s confidential information, and likely retained some evidence of it even if it‘s in storage, creates a conflict with your former client and I really believe that in order to continue representation, you‘re going to have to obtain a written waiver of the conflict both from Dr. Henson and from your former client, and it sounds as if he is not going to be willing to waive that conflict.
There . . . was a case out of Ohio that was cited in the Government‘s brief about a taint team approach, where somebody else from your firm might be in a position to do the cross-examination of the witness but I am not even sure here that that would fully address what needs to be done and so while—and I‘m happy to hear any evidence anybody would like to present here on this today, my inclination is to find that there is a conflict if you can‘t obtain waivers from everyone that‘s involved, Mr. Kerns. And if you are able to do that, I would like to know by the end of this week and would like to have those written waivers submitted so that we have them. And if I haven‘t heard from you by Friday at 9 o‘clock that you have obtained the waivers, absent some further authority, I intend to find that there is an irreconcilable conflict of interest and Dr. Henson is going to have to obtain different counsel. Unless the parties can agree upon some other approach.
Id., Doc. 410, at 146-48 (Tr. Hr‘g on Gov‘t‘s Conflicts Mot., dated July 18, 2017) (emphasis added) (line breaks omitted). Later in the hearing, the court stated, in denying Mr. Henson‘s motion for a continuance, that Mr. Henson‘s trial would start on Monday, July 24, 2017, “unless, Mr. Kerns . . . end[ed] up either being removed by [the court] for a conflict of interest, or voluntarily withdrawing in an effort to allow Dr. Henson to find different counsel.” Case No. 6:16-cr-10018-JTM, Doc.
The next day, on July 19, 2017, Mr. Kerns filed his “Motion to Withdraw as Counsel Pursuant to the Court‘s Order to Withdraw.” Aplt.‘s App., Doc. 210, at 66-67 (capitalization omitted). Purporting to move the district court “pursuant to its order on July 18, 2017 determining a conflict and ordering counsel to withdraw,” Mr. Kerns represented that he was unable to obtain waivers from his prior clients, based on statements made by their current counsel. Id. at 66 (emphasis added). Mr. Kerns further averred that he was filing the motion “in compliance with the Court‘s order, while preserving the issue for future appellate review, if necessary.” Id. By minute order dated July 21, 2017, the district court granted Mr. Kerns‘s motion “for reasons stated on the record at the July 18, 2017 hearing and because defendant has new counsel as to Steven R. Henson.” See id., Doc. 212, at 11 (Minute Order, entered July 21, 2017).
After he was convicted, Mr. Henson raised this counsel-of-choice issue in his motion for new trial, which the district court denied.6 The court
acknowledged that, at the end of its July 18 hearing on the government‘s conflict-of-interest motion, it stated that, “absent some additional arrangement . . . a conflict of interest likely existed, and gave the parties a week to suggest solutions.” Id., Doc. 427, at 193
2
On appeal, Mr. Henson is keen to contest what he views as the district court‘s erroneous finding of a conflict of interest—a finding that, in his telling, arbitrarily deprived him of his chosen counsel in violation of his constitutional rights. As a general matter, Mr. Henson is correct that the Sixth Amendment guarantees the accused the “right to be represented by an otherwise qualified attorney whom [he] can afford to hire.” United States v. McKeighan, 685 F.3d 956, 966 (10th Cir. 2012) (quoting Caplin & Drysdale v. United States, 491 U.S. 617, 624-25 (1989)); see United States v. Gonzalez-Lopez, 548 U.S. 140, 147-48 (2006) (noting that the right to counsel of choice “has been regarded as the root meaning of the [Sixth Amendment‘s] constitutional guarantee“); see also United States v. Holloway, 826 F.3d 1237, 1241 (10th Cir. 2016) (“Because ‘erroneous deprivation of the right to counsel of choice [has] “consequences that are necessarily unquantifiable and indeterminate, [the deprivation] unquestionably qualifies as structural error.“’ Accordingly, ‘[i]f a defendant is wrongly denied his counsel of choice, no showing of prejudice is necessary to establish constitutional error.‘” (alterations in original) (citations omitted) (first quoting Gonzalez-Lopez, 548 U.S. at 150, then quoting McKeighan, 685 F.3d at 966)). But cf. Holloway, 826 F.3d at 1241-42 (noting that the right to chosen counsel “is not absolute“; that district courts enjoy “wide latitude in balancing the right to counsel of choice against the needs of fairness“; and that, accordingly, “[o]nly when the trial court unreasonably or arbitrarily interferes with a defendant‘s right to counsel of choice do we agree a conviction cannot stand” (quoting first McKeighan, 685 F.3d at 966, quoting second Gonzalez-Lopez, 548 U.S. at 152,
and quoting third United States v. Mendoza-Salgado, 964 F.2d 993, 1016 (10th Cir. 1992))).
However, we do not reach the merits of Mr. Henson‘s counsel-of-choice claim because we agree with the district court: Mr. Kerns‘s voluntary withdrawal took the matter “out of the court‘s hands” and “short-circuited” the court‘s decision-making process. Aplt.‘s App. at 193, 195. That is to say, we conclude that, by voluntarily withdrawing his representation of Mr. Henson before the district court could issue a definitive decision on the conflict-of-interest question, Mr. Kerns effectively abandoned the basis for any argument
As a threshold matter, “[t]he scope of our review . . . is limited to the issues the [appellant] properly preserves in the district court and adequately presents on appeal.” Allman v. Colvin, 813 F.3d 1326, 1329 (10th Cir. 2016) (omission in original) (quoting Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996)). In this vein, we have held that where an appellant waives an issue in the district court, he fails to preserve it for appellate review. See United States v. McGehee, 672 F.3d 860, 873 (10th Cir. 2012) (“[A] party that has waived a right is not entitled to appellate relief.” (alteration in original) (quoting United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006))); cf. Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.“).
“[W]aiver is the ‘intentional relinquishment or abandonment of a known right.‘” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); accord Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 991 (10th Cir. 2019); see also Vreeland v. Zupan, 906 F.3d 866, 876 (10th Cir. 2018) (“[W]hen we say a defendant has waived a particular right, we mean that the defendant has knowingly, voluntarily, and intentionally chosen to relinquish it.“). “We typically find waiver . . . in cases where a party has invited the error that it now seeks to challenge, or“—as is especially relevant here—“where a party attempts to reassert an argument that it previously raised and abandoned below.” McGehee, 672 F.3d at 873 (quoting United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008)); see United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009) (“Waiver occurs when a party deliberately considers an issue and makes an intentional decision to forgo it.“).8
There, we considered a defendant‘s attempt “to resurrect [on appeal] his argument that the imposition of a 16-level [sentencing] enhancement was improper“; the defendant had made this argument in objections to his presentence investigation report, but during his sentencing hearing, his counsel asserted those objections had “been resolved.” Carrasco-Salazar, 494 F.3d at 1271–72. On appeal, we concluded that this withdrawn objection had been affirmatively abandoned by the defendant and, therefore, he had waived the opportunity to raise the objection on appeal. See id. at 1272–73. Noting that “our sister circuits have uniformly held that an abandoned objection is waived,” we held that “[t]here can be no clearer ‘intentional relinquishment or abandonment of a known right’ than when the court brings the defendant‘s prior objection to his attention, asks whether it has been resolved, and the defendant affirmatively indicates that it has.” Id. at 1272–73 (citation omitted) (quoting Olano, 507 U.S. at 733).
Accordingly, we concluded that the defendant had “waived his objection to the 16-level enhancement by indicating to the district court that it had been resolved” and, therefore, he was “precluded from challenging . . . [that] enhancement on appeal.” Id. at 1273; see also, e.g., United States v. Carter, 941 F.3d 954, 959 (10th Cir. 2019) (finding that defendant waived a procedural challenge to his sentence where his “counsel unequivocally stated [at sentencing] that [d]efendant withdrew his objection” and, therefore, “affirmatively abandoned” the challenge in the district court); McGehee, 672 F.3d at 873–76 (discussing our holding in Carrasco-Salazar and finding a defendant had waived appellate review of a sentencing argument “he expressly declined to pursue before the district court“); cf. Cruz-Rodriguez, 570 F.3d at 1185 (describing our “classic waiver situation” as one “where a party ‘actually identified [an] issue,’ ‘deliberately considered’ it, and then affirmatively acted in a manner that ‘abandoned any claim’ on the issue” (quoting Zubia-Torres, 550 F.3d at 1205–06)).
The record before us makes plain that Mr. Kerns‘s voluntary and affirmative withdrawal of his representation of Mr. Henson abandoned—that is, waived—the conflict-of-interest issue before the district court could definitively rule on it. And, because a court ruling adverse to Mr. Henson on this issue is a necessary predicate for his Sixth Amendment counsel-of-choice claim, Mr. Kern‘s action had the effect of depriving Mr. Henson of an opportunity—i.e., waiving his opportunity—to present this claim on appeal. In other words, Mr. Henson predicates his Sixth Amendment argument on the district court‘s purportedly erroneous adverse determination that Mr. Kerns labored under a conflict of interest remediable only through written
At the hearing on the government‘s motion, the court expressed only an “inclination” that it might potentially find an irreconcilable conflict at a future date—or, at most, that it “intend[ed] to” make such a finding in the absence of certain ameliorative measures. See Aplt.‘s App. at 147–48. As to these measures, the court suggested that it would find any potential conflicts cured were Mr. Kerns to obtain written waivers from Mr. Henson and his former clients by 9:00 a.m. that Friday, July 21, 2017. Significantly, and contrary to what Mr. Henson argues in his opening brief, the court did not limit the galaxy of ameliorative measures solely to written waivers. Instead, the court broached the possibility of a “taint team approach,” or “some other approach“—that the parties might formulate and agree to—to cure any potential conflicts under which Mr. Kerns labored; more generally, it invited the parties to present “any evidence” they had on the issue or to submit “further authority” that might move the court away from its initial “inclination.” Aplt.‘s App. at 147–48; see id. (noting that the court “intend[ed] to find that there is an irreconcilable conflict of interest,” “absent some further authority” or “[u]nless the parties can agree upon some other approach” (emphases added)).
But rather than avail himself of any of these options, Mr. Kerns instead chose to voluntarily withdraw the day after the court‘s hearing, thereby leaving the conflict-of-interest question unresolved. See id. at 195 (“The court‘s decision [on the conflict-of-interest issue] was explicitly not final and suggested alternatives. The court indicated that it was ‘inclin[ed]’ to find a conflict, and acknowledged that this could potentially be resolved in three ways—by ‘written waiver,’ by a . . . ‘taint team approach,’ or by ‘some other approach’ if agreed to by the government and [Mr. Henson]. The court also asked for ‘any evidence’ any party would like to submit, and also explicitly invited ‘further authority’ on the issue. All of these potential avenues were short-circuited by Mr. Kerns‘s voluntary withdrawal.” (second alteration in original) (emphasis added)). In other words, what Mr. Henson characterizes as a decision or “ruling” by the district court, see Aplt.‘s Opening Br. at 25, was far more contingent and far less definitive—and, consequently, did not constitute a decision at all. And “[a]s a general rule, we do not consider an issue not presented, considered, and decided by the district court.” Maestas v. Lujan, 351 F.3d 1011, 1016 (10th Cir. 2003) (alteration in original) (emphasis added) (quoting United States v. Duncan, 242 F.3d 940, 950 (10th Cir. 2001)); accord Niemi v. Lasshofer (“Niemi II“), 770 F.3d 1331, 1346 (10th Cir. 2014); cf. United States v. Suggs, 998 F.3d 1125, 1141 (10th Cir. 2021) (noting that “we are ‘a court of review, not of first view‘” (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005))).
Faced with the absence of any definitive ruling from the district court on whether Mr. Kerns labored under a conflict of interest or whether any potential conflict could be cured only through written waivers—an absence that resulted from Mr. Kerns‘s voluntary withdrawal before the court could render a definitive ruling—Mr. Henson nonetheless attempts
Indeed, this point merits emphasis: the record before us offers no objective basis upon which to conclude either that the district court issued any appealable conflict-of-interest ruling—which could form the basis for Mr. Henson‘s counsel-of-choice claim—or that Mr. Kerns could preserve a challenge to such a purported conflict-of-interest ruling simply by characterizing the challenge as preserved in his motion to withdraw. In particular, as to this second point, Mr. Henson does not cite any legal authority for the proposition that a party can resurrect a waived issue merely through the ipse dixit of his trial counsel. Cf. United States v. VanDam, 493 F.3d 1194, 1201 n.4 (10th Cir. 2007) (observing that it would be “truly Panglossian” if the government could “reimpose” a higher sentencing range previously rejected by the district court through the sheer power of its arguments at resentencing), abrogated in part on other grounds by Puckett v. United States, 556 U.S. 129 (2009). Thus, Mr. Kerns‘s subjective assessment of whether the conflict-of-interest issue remained viable is of no moment to our analysis, especially in light of record evidence showing clear abandonment.
On this same score, Mr. Henson does not put forth a convincing reason for why Mr. Kerns was not required to do something beyond simply withdrawing in order to preserve a challenge regarding the conflict-of-interest issue, upon which his counsel-of-choice claim turns. Cf. Oral Arg. at 30:15–30:48 (the court querying whether, even assuming the district court made a ruling on the conflict-of-interest question, “in order to fully preserve” his challenge to this ruling, Mr. Kerns needed to “make a record” that, e.g., he found no additional legal authority on the question or that he explored ameliorative measures beyond written waivers, but concluded none were feasible); id. at 30:49–31:11 (The court: “[What] troubles me is the line of reasoning that says that when the court makes a ruling [counsel simply disagrees with], that [counsel] can just . . . [withdraw]. Don‘t you have to make sure . . . that you‘ve locked in [and preserved] your position?“). Beyond insisting that he had preserved a challenge to the court‘s supposed conflict-of-interest ruling by saying he had done so, Mr. Kerns, in his withdrawal motion, makes no mention of any non-waiver efforts he had taken to negate the court‘s conflict concerns—such as proposing a taint-team approach or some other approach agreed to by the parties or offering additional legal authorities bearing on the conflict-of-interest issue.
Moreover, the timing of Mr. Kerns‘s withdrawal motion—which was filed the day after the court‘s hearing, despite the
Thus, Mr. Henson fails to show how or why Mr. Kerns‘s statements—made in his withdrawal motion—preserved a conflict-of-interest issue for appeal in the face of objective, countervailing evidence in the record that (1) the district court had not definitively decided whether a conflict of interest existed or whether a potential conflict was curable only by furnishing written waivers, and that (2) Mr. Kerns voluntarily “acted in a manner” that unambiguously “abandoned any [conflict-of-interest] claim.” See Cruz-Rodriguez, 570 F.3d at 1185 (quoting Zubia-Torres, 550 F.3d at 1205–06). In particular, Mr. Kerns did not somehow resurrect any conflict-of-interest issue that he had abandoned by merely inveighing against a purportedly erroneous ruling that the district court, in fact, never made.
Unaided by Mr. Kerns‘s statements, Mr. Henson further contends that the court confirmed both that it had found a conflict requiring written waivers and that Mr. Kerns‘s withdrawal was not voluntary when it granted Mr. Kerns‘s withdrawal motion “for reasons stated on the record at the July 18, 2017 hearing” on the government‘s conflicts-of-interest motion. Aplt.‘s App. at 11; see Aplt.‘s Opening Br. at 25 (“In granting [Mr.] Kerns‘s motion to withdraw, the district court . . . indicated that it was doing so in conformity with i[t]s rulings at the July 17, 2018, hearing.“). Further, Mr. Henson also appears to suggest the court was under some obligation not to grant Mr. Kerns‘s motion if the court had not, in fact, definitively ruled on the conflict-of-interest question or hinged its conflicts ruling on the absence of waivers. See id. at 27 (“When the district court granted [Mr.] Kerns‘s motion without any disagreement with its assertions, it acknowledged that it intended to disqualify [him] in the absence of waivers he did not obtain. If that was not the case, the district court would have denied the motion as being based on an incorrect premise.“).
We start with this last point—regarding the court‘s ostensible obligation—finding it unsupported by authority and fundamentally misguided. Irrespective of whether Mr. Kerns subjectively understood that the court had not definitively ruled on the conflict-of-interest question, he expressly requested relief—i.e., permission to withdraw—by filing a motion. And Mr. Henson does not explain why—let alone offer any authority demonstrating
More importantly, the court‘s minute order granting Mr. Kerns‘s withdrawal motion does not signify or communicate what Mr. Henson claims it does—i.e., it does not clearly indicate that Mr. Kerns actually was correct in believing that the court had decided he labored under a conflict of interest that could be rectified solely through written waivers. Mr. Henson places great weight on the order‘s language, which states that the court granted Mr. Kerns‘s motion “for reasons stated” during the July 18 hearing on the government‘s conflict-of-interest motion. But Mr. Henson omits from his discussion of the minute order a later portion of that hearing transcript.
There, in denying Mr. Henson‘s separate motion for a continuance, the court stated the following: “So, I am denying the motion to continue this trial. [Mr. Henson‘s trial] will proceed on Monday, July 24th, unless, Mr. Kerns, you end up either being removed by me for a conflict of interest, or voluntarily withdrawing in an effort to allow Dr. Henson to find different counsel.” Case No. 6:16-cr-10018-JTM, Doc. 410, at 12:4-8 (emphasis added). In other words, the court gave Mr. Kerns the option of withdrawing voluntarily, so that Mr. Henson could find another attorney. And from the record, it seems likely that this is precisely what Mr. Kerns did. That is, rather than wait for a definitive ruling on the conflict-of-interest question, Mr. Kerns withdrew to allow Mr. Henson time and opportunity to find another lawyer.
Thus, the court‘s language in its minute order granting Mr. Kerns‘s withdrawal motion “for reasons stated” at the July 18 hearing could well have been referencing its comments regarding Mr. Kerns‘s potential, voluntary withdrawal, rather than the court‘s assessment of a potential conflict of interest. In the end, we need not decide what the court meant by this language in its minute order. Instead, it is enough for us to conclude that Mr. Henson has not established that the minute order—in opposition to other record evidence—clearly evinces that the court had made a definitive ruling on the conflict-of-interest question or, more specifically, had determined any potential conflict could only be cured through written waivers.
In sum, we conclude that Mr. Kerns‘s voluntary and affirmative withdrawal of his representation of Mr. Henson abandoned the conflict-of-interest issue before the district court could definitively rule on it. And, because a court ruling adverse to Mr. Henson on this issue is a necessary predicate for his counsel-of-choice claim, Mr. Kern‘s action had the effect of depriving Mr. Henson of an opportunity (i.e., waiving his opportunity) to present this counsel-of-choice claim on appeal. Stated otherwise, it was Mr. Kerns himself, of his own accord, that deprived Mr. Henson of his original counsel, not the district court. And it is beyond peradventure that Mr. Henson must accept the consequences of Mr.
B
In his second issue on appeal, Mr. Henson claims he is entitled to a new trial based on the district court‘s purported error in giving a “deliberate ignorance” or “willful blindness” instruction to the jury. The specific instruction Mr. Henson challenges is Jury Instruction No. 41, which reads as follows:
The term “knowingly” means that defendant realized what he was doing and was aware of the nature of his conduct and did not act through ignorance, mistake, or accident.
When the word “knowingly” is used in these instructions, it means that the act was done voluntarily and intentionally, and not because of mistake or accident. Although knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself or herself to the existence of a fact. Knowledge can be inferred if the defendant was aware of a high probability of the existence of the fact in question, unless the defendant did not actually believe the fact in question.
Aplt.‘s App., Doc. 368, at 128 (Jury Instrs., filed Oct. 23, 2018) (emphasis added).
Here, again, we do not reach the merits of this issue. As with his counsel-of-choice claim, Mr. Henson‘s instructional error claim suffers from a “fatal flaw.” United States v. Hillman, 642 F.3d 929, 939 (10th Cir. 2011). Specifically, while Mr. Henson challenges the sufficiency of the evidence supporting a deliberate ignorance theory of knowledge, he does not challenge the sufficiency of the evidence supporting a theory of actual knowledge, which the instruction in question also addressed. And “because he does not challenge the sufficiency of the evidence on a theory of actual knowledge, our case law precludes reversal of [Mr. Henson‘s] conviction[s] on the basis of insufficient evidence supporting an alternate theory of deliberate ignorance.” Id. (emphasis added); see also Aplee.‘s Resp. Br. at 40–41 (noting that Mr. Henson “is not entitled to review of [his instructional error] claim on the merits because the district court instructed the jury that it could convict [him] if he had actual knowledge that his conduct was illegal, and he fails to challenge the sufficiency of the evidence on a theory of actual knowledge, which Instruction 41 also addressed“).
Two of our cases are especially on point. First, in United States v. Ayon Corrales, the defendant challenged a “knowledge” jury instruction quite similar to Instruction 41 in Mr. Henson‘s case. See 608 F.3d 654, 657–58 (10th Cir. 2010). That instruction “addressed both actual knowledge and deliberate ignorance” and was modeled on this court‘s Pattern Criminal Jury Instruction No. 1.37. Compare id. at 657 (defining “knowingly” as meaning, inter alia, “that [an] act was done voluntarily and intentionally,” and that “knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact“), with 10th Cir., Criminal Pattern Jury Instr. No. 1.37 (Knowingly—Deliberate Ignorance) (2d ed., updated Feb. 2018) (“When the word ‘knowingly’ is used in these instructions, it means that the act was done voluntarily and intentionally, and not because of mistake or accident. Although knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the
Like Mr. Henson, the defendant in Ayon Corrales did not argue that the instruction “misstate[d] the law,” but rather “contend[ed] that there was insufficient evidence at trial to support a jury finding of deliberate ignorance, so an instruction on that theory was improper. . . . absent supporting evidence.” Ayon Corrales, 608 F.3d at 657. But we declined to “determine . . . whether there was sufficient evidence of deliberate ignorance” because, just like Mr. Henson, the Ayon Corrales defendant “d[id] not challenge the sufficiency of the evidence to support a conviction based on a finding of actual knowledge“—and “when there is sufficient evidence to support a conviction on one theory of guilt on which the jury was properly instructed, we will not reverse the conviction on the ground that there was insufficient evidence to convict on an alternative ground on which the jury was instructed.” Id.; see id. at 657–58 (explaining that this
principle was “set forth by the Supreme Court” in Griffin v. United States, 502 U.S. 46 (1991), where the Court held that “when an offense can be committed by two or more means, a guilty verdict will be sustained when the evidence is sufficient to support one of the means, even if the evidence will not support any alternative means“); see also United States v. Hanzlicek, 187 F.3d 1228, 1234–36 (10th Cir. 1999) (holding in the alternative that, “[e]ven were [we] to conclude that the evidence adduced at trial was not sufficient to support the giving of [a] deliberate ignorance instruction, the error would be harmless” because, inter alia, “the jury was instructed on alternate theories of actual knowledge and deliberate ignorance,” “the deliberate ignorance instruction given properly stated the law,” and “there was sufficient . . . evidence of actual knowledge“—and, therefore, the “district court d[id] not commit reversible error whe[n] it submit[ted] a properly-defined, although factually unsupported, legal theory to the jury along with a properly supported basis of liability“). Thus, in Ayon Corrales, “[b]ecause there was indisputably sufficient evidence for the jury to find that [the defendant] had actual knowledge“—and, to put a finer point on it, because the defendant affirmatively failed to challenge the sufficiency of the evidence supporting a theory of actual knowledge—we rejected the defendant‘s instructional error claim. 608 F.3d at 658.
One year later, we again “considered the interplay between challenges to a deliberate ignorance instruction and actual knowledge for purposes of appellate review.” Hillman, 642 F.3d at 939. Relying on and discussing Ayon Corrales, the Hillman court “decline[d] review of the sufficiency of the evidence of deliberate ignorance” because the defendant “d[id] not challenge the sufficiency of the evidence supporting the actual knowledge [jury] instruction or the language of the actual knowledge instruction itself.” Id. at 940. As the defendant‘s position was “the same as the one we rejected in [Ayon] Corrales, and [as] he ha[d] failed to provide any reasonable basis on which to distinguish his case,” we rejected his instructional error challenge and affirmed his conviction. Id..
The government cites Hillman and Ayon Corrales as barring appellate review of Mr. Henson‘s instructional error claim. See Aplee.‘s Resp. Br. at 41 (“[Mr.] Henson‘s failure to [challenge the sufficiency of the evidence on a theory of actual knowledge] forecloses him from obtaining review on the merits of his claim that the government
Accordingly, because Mr. Henson fails to contest the sufficiency of the government‘s evidence of his actual knowledge, we decline to review Mr. Henson‘s instructional error claim based on the purported insufficiency of the government‘s deliberate ignorance evidence, pursuant to our decisions in Hillman and Ayon Corrales.
C
In his third issue on appeal, Mr. Henson argues that his life sentence is unreasonable. As with our review of Mr. Henson‘s counsel-of-choice claim, we begin by reviewing the salient procedural background—here, Mr. Henson‘s sentencing hearing in the district court—and then consider his arguments challenging the reasonableness of his sentence. We ultimately conclude Mr. Henson‘s sentence is reasonable in all relevant respects.
1
Following his convictions, Mr. Henson was sentenced for his crimes on March 8, 2019. At Mr. Henson‘s sentencing hearing, the court first took up objections to his Presentence Investigation Report (“PSR“), sustaining some and overruling others; this resulted in Mr. Henson receiving a total offense level of 42, a criminal history category of I, and an advisory guidelines range of 360 months to life for his crimes. Aplt.‘s App., Doc. 465, at 261 (Tr. Sentencing Hr‘g, dated Mar. 8, 2019). The district court next heard the parties’ positions on what sentence Mr. Henson should receive. The government recommended a within-guidelines life sentence, primarily based on Count 17, which related to Mr. Henson‘s role in causing the death of Nick McGovern, one of his former patients. Mr. Henson, on the other hand, sought a below-guidelines sentence of twenty years, the statutory minimum, maintaining that a greater sentence would be “[un]necessary” given the “model life” Mr. Henson led “[o]utside of this case.” Id. at 262–63; see id. at 262–65 (Mr. Henson‘s counsel highlighting, inter alia, Mr. Henson‘s “dedicat[ion] . . . to his career, to his faith, and to his community“; his mission trips; and his purported lack of ill intent or malice, and arguing that, in light of these factors, “[t]wenty years [in prison] is more than enough to incapacitate, to rehabilitate, to deter,” and “to recognize the seriousness of [Mr. Henson‘s] offense[s]“). Mr. Henson also spoke briefly on his own behalf:
Your Honor, I trained hard to become a physician. I have been recognized as a well-trained physician and I‘ve only had one goal in life as a physician, [which] was to be able to take excellent care of patients and to increase their functionality. That‘s been my only goal in medicine and bringing care to the underserved, both in my local community as well as world-wide because not everybody has the opportunity to receive the care that they need. Thank you.
Id. at 266–67.
After hearing several victim statements, the district court announced its sentencing decision. The court began by acknowledging it was “required to impose a sentence . . . sufficient but not greater than
The court then made the following remarks, which form the key basis for Mr. Henson‘s challenge to the reasonableness of his sentence. Given their centrality to his challenge, we quote them at some length:
Having considered all of the stated factors and the advisory guidelines, the nature and circumstances of the offense, Dr. Henson‘s history and characteristics, I am about to announce and impose a sentence. I do have a couple of observations, having dealt with this case now for a couple of years and having been present at the trial. And no case exists in a vacuum and . . . I believe every person is more than the worst thing they‘ve ever done in their lives; that everyone is entitled to dignity and respect when they come in to this kind of situation, and that that ought to be a consideration in sentencing.
And, Dr. Henson, I have made every effort to afford you at every opportunity the dignity and respect that I would any person, whatever the charge has been, or whatever the charges have been, and as I listen, you saying that all you‘ve ever really wanted to do is to take care of people, and to increase their functionality, and that that may have been what you were attempting to do throughout your practice, but it is very difficult to reconcile those statements with your conduct throughout this case.
You know, as I have thought about people that I have seen over the years, and there are probably no more than three or four people that I thought were just absolutely filled with evil that were absolutely beyond redemption, but in your case . . . I think in some respects what I have seen from you is worse, in that you seem to not really understand. I really don‘t think that you get it. I think in some respects you‘re numb to what you were doing over time. The quantities of pills that you were prescribing, the combinations of pills that you were prescribing, and the combinations even with lesser quantities had deadly consequences, and that‘s why Nick McGovern ended up where he is. It was Alprazolam and Methadone, the combination is what ultimately did him in, and I just wonder whether your practices really have had any impact on you.
It seems you‘re still saying, Why am I here? What have I done wrong? What did I do? And that question has been answered in this case over and over, and over again by witness after witness, by the experts, and the jury, frankly, in its verdict answered that question over and over, and over again. And it is as if for as bright as you clearly are, for the good things that you have done in your life -- and I‘m not overlooking those -- that you seem to be missing some kind of a piece that allows you to tap into other people‘s feelings and the[ir] suffering[;] . . . focus[ing] more on, Why is this happening to me, than the impact that you‘ve had on others.
And we are now at a point where the most recent literature indicates that worldwide more than one in every five persons over the age of 14 is addicted to drugs. And that is mind boggling. More than one out of every five persons over
the age of 14 is addicted to drugs. And so many of the people that you were seeing over time were addicts. And I never saw an effort with any -- there was one patient of yours that did come in, though, and talk about all the good that you had done for him, and we recognize that, and maybe that‘s the way things started with you when you got into the pain medication area, and maybe over time you just lost either the ability to look at each patient individually and what they needed, and what horse they were on, maybe you had too many of them to be able to do that, or there may have been some other reason. I never fully understood it. You‘ve indicated that you probably didn‘t pay as much attention to some of these folks as you should have, and there‘s no question about that. You didn‘t pay as much attention as you should have to virtually every patient over the past year, or the last year or so that you were in practice. And I take all of that into account in trying to determine what an appropriate sentence is in your case. This is -- and I have sentenced people to life before, but they were people who took guns and shot people. They were not people who wrote out prescriptions resulting in death. It was just there was a step removed in the process. I have sentenced people to lengthy sentences short of life as well, but I have never had a case like yours. And this has been a very, very difficult case, I think for everybody who has been involved. I thought your lawyers did a tremendous job of defending you in this trial and I think that they had a very difficult job for a couple of reasons: [f]irst of all, because the evidence was just overwhelming; and [s]econd of all, I think, Dr. Henson, that you still think you‘re the smartest person in the room and that you would be in a position to sway a jury if they just listened to what you had to say. However, the things that you said didn‘t add up in a lot of respects.
[Your counsel] indicated that you didn‘t do this for money, but I remember your testimony that you raised your fee from $50 to $300 because you had to pay rent on your office. [Your counsel] indicated that you did not make Nick McGovern take the pills but in point of fact, you put him in a position with your prescriptions where he had to take those pills just in an effort to try and get through the day. It was creating more pain; not taking more away. And the whole approach of just giving people whatever they said they needed for pain, you were exacerbating a problem, you were not treating it. And that being the case, and looking at the consequences, this is the sentence that I intend to impose.
Id. at 286–91 (line breaks omitted).
Following these remarks, the court sentenced Mr. Henson to terms of life imprisonment for Count 17; 240 months’ imprisonment for each of Counts 1 through 14, 16, and 26 through 31; 60 months’ imprisonment on Count 19; and 12 months’ imprisonment on Count 20—all to run concurrently. Id. at 291. Mr. Henson‘s life sentence fell within his advisory guidelines range. The court stated that it “believe[d] this [life] sentence is as sufficient . . . a sentence that [it] can give . . . but is not greater than necessary to reflect the seriousness of [Mr. Henson‘s] offenses, to promote respect for the law, and to provide just punishment for the offense,” pursuant to
After announcing its sentence, the district court also revoked Mr. Henson‘s bond, to which his counsel objected. Id. at 292–93. However, when asked by the court in closing its hearing if he had “anything further on behalf of [Mr.] Henson here today,” Mr. Henson‘s counsel responded, “No, Your Honor.” Id. at 298.
2
a
On appeal, we review Mr. Henson‘s sentence for “reasonableness under an abuse-of-discretion standard.” Peugh v. United States, 569 U.S. 530, 537 (2013); accord United States v. Nkome, 987 F.3d 1262, 1268 (10th Cir. 2021); see also United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (“[W]e review the reasonableness of sentencing decisions, ‘whether inside, just outside, or significantly outside the Guidelines range[,] under a deferential abuse-of-discretion standard.‘” (second alteration in original) (quoting Gall v. United States, 552 U.S. 38, 41 (2007))).
“Our appellate review for reasonableness includes both a procedural component, encompassing the method by which a sentence was calculated, as well as a substantive component, which relates to the length of the resulting sentence.” United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008); see United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (“Reasonableness review is a two-step process comprising a procedural and a substantive component.” (quoting United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008))); see also United States v. Martinez-Barragan, 545 F.3d 894, 898 (10th Cir. 2008) (noting that our reasonableness review “has both procedural and substantive dimensions“).11
“First, we must ‘ensure that the district court committed no significant procedural error,‘” United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011) (quoting Gall, 552 U.S. at 51), which entails “consider[ing] ‘whether the district court committed any error in calculating or explaining the sentence,‘” United States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019) (quoting Friedman, 554 F.3d at 1307), cert. denied, 140 S. Ct. 276 (2019). As relevant here, “[g]enerally, a district court‘s use of an improper factor invokes procedural review.” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009); see Smart, 518 F.3d at 803 (“[I]f a district court bases a sentence on a factor
If we conclude “the district court‘s decision is ‘procedurally sound,’ we [then] move on to the second step and ‘consider the substantive reasonableness of the sentence imposed,‘” Lente, 647 F.3d at 1030 (quoting Gall, 552 U.S. at 51), which entails considering “whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in
Ultimately, the district court‘s “mandate is to impose a sentence” in line with the “parsimony principle“: i.e., the court‘s chosen sentence must be “‘sufficient, but not greater than necessary, to comply with the purposes’ of criminal punishment, as expressed in
Mr. Henson argues that his life sentence is both procedurally and substantively unreasonable. On the procedural front, Mr. Henson faults the district court for (1) “mention[ing] the [
That said, we have acknowledged that, while courts and parties alike “should avoid unduly blurring the line between substantive and procedural reasonableness,” there is “some unavoidable overlap.” Barnes, 890 F.3d at 917; see also United States v. Liou, 491 F.3d 334, 337 (6th Cir. 2007) (describing “the border between factors properly considered ‘substantive’ and those properly considered ‘procedural‘” as “blurry, if not
While Mr. Henson has characterized the bulk of his arguments as challenging the procedural reasonableness of his life sentence, some of these arguments “blur the line between procedural and substantive reasonableness.” United States v. Sanchez-Leon, 764 F.3d 1248, 1268 n.15 (10th Cir. 2014) (noting that “procedural error is the ‘fail[ure] . . . to consider all the relevant factors,’ whereas substantive error is when the district court ‘impos[es] a sentence that does not fairly reflect those factors‘” (alterations and omission in original) (quoting United States v. Lopez-Macias, 661 F.3d 485, 489 n.3 (10th Cir. 2011))). Thus, although we follow Mr. Henson‘s lead in structuring our consideration of his challenge to his sentence, we recognize that certain of his arguments could implicate either the procedural or substantive component of our overarching reasonableness inquiry, irrespective of Mr. Henson‘s characterizations.
b
Before delving into Mr. Henson‘s arguments, we stress the significant hurdles he faces in establishing that his sentence is unreasonable. At a baseline level, our review of a district court‘s sentencing decisions is deferential. See, e.g., Smart, 518 F.3d at 805–06 (noting that “it has been well settled that we review a district court‘s sentencing decisions solely for abuse of discretion,” which demands “substantial deference to district courts“); see also United States v. Angel-Guzman, 506 F.3d 1007, 1015 (10th Cir. 2007) (noting, in the context of a substantive reasonableness inquiry, that “[w]e have always regarded appellate review of sentencing decisions as ‘deferential‘” (quoting United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam))); cf. McComb, 519 F.3d at 1053 (discussing the “congruence between the ‘abuse of discretion’ standard of review and our longstanding ‘reasonableness’ test“).
This deferential posture makes sense, as “there are perhaps few arenas where the range of rationally permissible choices is as large as it is in sentencing, ‘a task calling on a district court‘s unique familiarity with the facts and circumstances of a case and its judgment in balancing a host of incommensurate and disparate considerations, ranging from the degree of the defendant‘s cooperation and remorse to the need for deterring potential future offenders.‘” McComb, 519 F.3d at 1053–54 (quoting United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007)); see Gall, 552 U.S. at 51 (highlighting the “[p]ractical considerations” warranting abuse-of-discretion review for sentencing decisions); cf. United States v. Booker, 543 U.S. 220, 233 (2005) (“We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.“).
But Mr. Henson faces further, formidable barriers to success beyond our baseline standard of review. As noted above, Mr. Henson‘s life sentence falls within the advisory guidelines range for his crimes—and, importantly, Mr. Henson does not claim on appeal that the district court incorrectly calculated those guidelines. Consequently, our review of Mr. Henson‘s sentencing challenge is “circumscribed” in two, related respects. See McComb, 519 F.3d at 1053.
First, as to Mr. Henson‘s arguments that his sentence is procedurally unreasonable, “[w]e have emphasized repeatedly . . . that, when imposing a sentence within the properly calculated Guidelines range,” (1) a district court need provide “only ‘a general statement noting the appropriate guideline range and how it was calculated‘“; (2) such statement “need involve no ‘ritualistic incantation to establish consideration of a legal issue‘” or “‘recit[ation of] any magic words’ to prove that [the court] considered the various factors Congress instructed it to consider“; and, more broadly, (3) we will only “step in and find error when the record gives us reason to think that our ordinary . . . presumption that the district court knew and applied the law is misplaced.” Ruiz-Terrazas, 477 F.3d at 1202 (quoting United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir. 2006)); accord United States v. Chavez, 723 F.3d 1226, 1232 (10th Cir. 2013); United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir. 2007); see also Rita v. United States, 551 U.S. 338, 356–57 (2007) (“[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the [Sentencing] Commission‘s own reasoning that the Guidelines sentence is a proper sentence (in terms of
Second, as to Mr. Henson‘s arguments that his sentence is substantively unreasonable, we will reverse a district court‘s sentencing decision under our traditional, abuse-of-discretion standard only where the sentence “exceeded the bounds of permissible choice” or was “arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Barnes, 890 F.3d 910, 915 (10th Cir. 2018) (first quoting McComb, 519 F.3d at 1053, then quoting United States v. DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017)); see United States v. Sanchez-Leon, 764 F.3d 1248, 1267 (10th Cir. 2014) (“We find an abuse of discretion [with regard to a district court‘s sentencing decision] only if the district court was ‘arbitrary, capricious, whimsical, or manifestly unreasonable’ when it weighed ‘the permissible
But for defendants like Mr. Henson, who received a within-guidelines sentence, showing substantive unreasonableness is harder still: “[w]e ‘presume a [within-guidelines] sentence is reasonable,‘” and Mr. Henson “bears the burden of rebutting the presumption.” United States v. Miller, 978 F.3d 746, 754 (10th Cir. 2020) (emphasis added) (quoting Chavez, 723 F.3d at 1233); see Sanchez-Leon, 764 F.3d at 1267 (stating that, when a defendant challenges his within-guidelines sentence, “we must reject his claim of substantive unreasonableness unless he can overcome the presumption that the sentence was reasonable“); see also McComb, 519 F.3d at 1053 (explaining that a “presumption on appeal is permissible because, among other things, in adopting a Guidelines-based sentence the district court necessarily will have come to the same conclusion as the Sentencing Commission about the proper sentence for the case at hand,” and this “concurrence between the Sentencing Commission‘s ‘wholesale’ judgment and the district court‘s independent ‘retail’ judgment . . . is strong evidence of the reasonableness of the ultimate sentence imposed” (quoting Rita, 551 U.S. at 348)); cf. Angel-Guzman, 506 F.3d at 1013 (“A sentencing formula produced by a deliberative, quasi-legislative body [i.e., the Sentencing Commission], applied to the specific facts of each case by a competent arbiter [i.e., the district court], will seldom require correcting.“).
Thus, we review the reasonableness of Mr. Henson‘s sentence with these principles in mind: most significantly, that we defer to district court sentencing decisions, as a general matter; that the district court was not obligated to say much in justifying its application of the guidelines to Mr. Henson, as a procedural matter; and that we presume Mr. Henson‘s sentence is reasonable, as a substantive matter, unless he rebuts that presumption. Having clarified our analytical backdrop, we proceed below by first considering Mr. Henson‘s procedural arguments, finding no error on this front. We then assess whether Mr. Henson rebuts the presumption that his sentence is substantively reasonable, determining that he has not. Therefore, we ultimately conclude Mr. Henson‘s within-guidelines life sentence is procedurally and substantively reasonable and, accordingly, affirm the district court‘s sentencing decision.
3
a
We begin by considering Mr. Henson‘s challenge to the procedural reasonableness of his sentence. In assessing whether the district court committed “significant procedural error” in calculating and imposing a sentence of imprisonment, we consider whether the court, inter alia, “fail[ed] to calculate (or improperly calculat[ed]) the Guidelines range, treat[ed] the Guidelines as mandatory, fail[ed] to consider
Mr. Henson‘s procedural reasonableness challenge—already facing long odds—“suffers the distinct [and additional] disadvantage of starting at least a few paces back from the block.” Richison, 634 F.3d at 1127. That is, because Mr. Henson failed to contemporaneously object to the district court‘s explanation of its sentencing decision, he has forfeited any challenge to the procedural reasonableness of his sentence—and, as the government rightly points out, we will therefore review such a challenge for, at most, plain error. See Aplee.‘s
Resp. Br. at 55 (arguing that, “[b]ecause [Mr.] Henson did not contemporaneously object to the adequacy of the district court’s explanation for the sentence . . ., [our] review is for plain error”).
Our caselaw amply supports the imposition of plain-error review where a defendant fails to lodge an objection to the court’s explanation at the time of sentencing. See, e.g., United States v. Wireman, 849 F.3d 956, 961–62 (10th Cir. 2017) (reviewing a defendant’s challenge to the procedural reasonableness of his sentence for plain error because he failed to “object to the district court’s alleged lack of explanation even though the district court explicitly asked him if he had ‘anything further,’” and under our precedents, a defendant “must . . . contemporaneously object in the district court to ‘the method by which the . . . court arrived at a sentence, including arguments that the sentencing court failed to explain adequately the sentence imposed,’ if he . . . hopes to avoid plain error review on appeal of any alleged procedural flaw” (quoting United States v. Romero, 491 F.3d 1173, 1176–77 (10th Cir. 2007))); United States v. Marquez, 833 F.3d 1217, 1220 (10th Cir. 2016) (“Because [the defendant’s] counsel did not raise a procedural objection at the sentencing hearing, his procedural challenge is reviewed for plain error.”); Ruiz-Terrazas, 477 F.3d at 1199 (“Because [the defendant] did not object to the procedure by which his sentence was determined and explained, we may reverse the district court’s judgment only in the presence of plain error.”); see also United States v. Uscanga-Mora, 562 F.3d 1289, 1293 (10th Cir. 2009) (noting “we have consistently held plain error review obtains when counsel fails to render a contemporaneous objection to the procedural adequacy of a district court’s statement of reasons at sentencing” and explaining why such review “is compelled both by our precedent and sound reason”).
Mr. Henson contends that plain-error review does not apply here because he was never given an opportunity to lodge an objection to the district court’s explanation for his sentence, but this claim is belied by the record. Notably, the court closed the sentencing hearing—after it had announced Mr. Henson’s sentence—by asking defense counsel whether he had “anything
We have applied plain-error review to procedural reasonableness claims in circumstances similar to Mr. Henson’s. See, e.g., United States v. Gehrmann, 966 F.3d 1074, 1081 (10th Cir. 2020) (“A district court explains its reasons for a sentence at the sentencing hearing, so a defendant must object at the hearing to preserve an objection to the adequacy of the court’s findings. If a defendant fails to preserve an objection, ‘any review would be confined to the plain-error standard.’ Here, . . . the district court gave [the defendant’s] counsel multiple opportunities to speak and to object at several junctures of the sentencing hearing. Though . . . counsel availed herself of the opportunities to speak, she never objected to the adequacy of the court’s findings. Accordingly, we will review [the defendant’s] claim [that the district court did not adequately explain its sentencing decision] for plain error.” (citations omitted) (quoting United States v. Yurek, 925 F.3d 423, 445 (10th Cir. 2019))); Marquez, 833 F.3d at 1220 n.1 (“[The defendant] contends plain error review is inapplicable because his counsel was not given an opportunity to raise a procedural objection. The district court, however, specifically inquired before adjourning the hearing whether counsel had ‘[a]nything else this morning’ to address. That inquiry provided [defense] counsel a sufficient opportunity to register an objection. Furthermore, . . . the fact that the district court’s inquiry came after [the defendant’s] sentence had been pronounced did not render it any less of an opportunity to object; after all, the district court still could have remedied any procedural defect identified at that time.” (second alteration in original) (citations omitted) (quoting Suppl. R., Vol. VIII, at 25)).
To prevail on his procedural reasonableness claim, then, Mr. Henson must “successfully run the gauntlet created by our rigorous plain-error standard of review.” McGehee, 672 F.3d at 876. This “demanding,” multi-pronged standard requires Mr. Henson to show “(1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights”—and, “[i]f he satisfies these criteria,” we may, in our discretion, “correct the error if [4] it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (second alteration in original) (quoting United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir. 2011)).14
Mr. Henson’s time in our plain-error gauntlet, however, is brief; indeed, because he fails to show the district court committed any procedural error, he falters at the first prong. Recall that Mr. Henson attacks the sufficiency and propriety of the district court’s explanation and justification for his life sentence. More particularly, Mr. Henson asserts the district court did not adequately explain how or why a life sentence—rather than the below-guidelines, twenty-year sentence he requested—comported with the
Mr. Henson’s various procedural arguments are unavailing. To start, the district court’s explanation for imposing a life sentence within Mr. Henson’s advisory guidelines range was more than adequate under our caselaw. Among other things, the district court (1) stated that it was “impos[ing] a sentence . . . sufficient but not greater than necessary to comply with the purposes of14
sentencing,” Aplt.’s App. at 284–85; (2) acknowledged that it had considered the guidelines, “the statements of the parties,” and the PSR, id. at 285; (3) announced that it would stay within the properly-calculated guidelines range for sentencing, id. at 285, 291; and (4) affirmed that it “considered all of the stated factors and the advisory guidelines, the nature and circumstances of the offense, [and Mr.] Henson’s history and characteristics,” id. at 286.This explanation went well beyond the minimum level of detail required to establish the procedural reasonableness of Mr. Henson’s within-guidelines sentence. See, e.g., Martinez-Barragan, 545 F.3d at 902–03; United States v. Tindall, 519 F.3d 1057, 1065 (10th Cir. 2008) (“In sentencing [the defendant] within the advisory guidelines range, the district court explained, ‘the sentence I am about to impose is the most reasonable sentence upon consideration of all factors enumerated in
Furthermore, the record reflects that the district court expressly examined several, specific
Contrary to Mr. Henson’s arguments, then, the court expressly considered the
Mr. Henson also takes issue with certain remarks made by the district court regarding his purported smugness and indifferent demeanor and regarding the global problem of drug addiction. He asserts that the court erred either by referencing these topics without explaining how they impacted its sentencing calculus (if they impacted it at all) or by improperly relying on them to justify his life sentence. Importantly, we observe at the outset—as Mr. Henson himself does—that it is not readily apparent from the sentencing transcript whether or not these remarks played any role in the district court’s sentencing decision. The court expressly characterized these remarks as “observations” reflecting the court’s involvement “with th[e] case . . . for a couple of years,” not as critical factors, if factors at all, in its decision making. Aplt.’s App. at 286 (declaring that the court was “about to announce and impose a sentence” after “consider[ing] all of the [
Nonetheless, even if we assume that the foregoing observations by the district court regarding Mr. Henson’s personal affect and the global problem of drug addiction had more than a de minimis impact on the court’s sentencing calculus, we conclude that the court did not procedurally err by considering these matters. Broadly speaking, there are few limits on the factors a judge may consider in crafting a defendant’s sentence. See
“It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Pepper v. United States, 562 U.S. 476, 487 (2011) (quoting Koon v. United States, 518 U.S. 81, 113 (1996)). To this end, both the Supreme Court and this court have emphasized that sentencing courts “exercise a wide discretion in the sources and types of evidence used to assist [them] in determining the kind and extent of punishment to be imposed.” Id. at 488 (quoting Williams v. New York, 337 U.S. 241, 246 (1949)); accord Smith, 756 F.3d at 1181–83.
Thus, under “longstanding American tradition[s] embodied in
More specifically, let us examine the court’s observations regarding Mr. Henson’s demeanor or affect. The court made various references to Mr. Henson’s apparent lack of contrition and failure to acknowledge the harm he caused to both individuals and the community with his reckless medical practices (i.e., his indifferent demeanor). See, e.g., Aplt.’s App. at 287 (noting that the court found it “very difficult to reconcile” Mr. Henson’s statements regarding his good works “with [his] conduct throughout th[e] case”); id. (telling Mr. Henson that, “in some respects,” what the court saw from him was worse than certain criminals “absolutely filled with evil . . . [and] beyond redemption” because he “really . . . [did not] get it” and was “numb to what [he] w[as] doing over time”); id. at 288 (observing that Mr. Henson seems to be “missing some kind of a piece that allows [him] to tap into other people’s feelings and the[ir] suffering[;] . . . focus[ing] more on, Why is this happening to me, than the impact that you’ve had on others”); see id. at 290 (commenting that Mr. Henson appeared to “still think [he was] the smartest person in the room”). These kinds of observations unquestionably fall within the ambit of several statutory sentencing factors, including Mr. Henson’s “history and characteristics,” and the need for Mr. Henson’s sentence to “promote respect for the law” and “afford adequate deterrence to criminal conduct”—all factors specifically cited by the district court in justifying its sentencing decision.
More to the point, we have recognized that a defendant’s hubris and associated lack of remorse—which the district court detected in Mr. Henson’s perceived smugness and indifferent demeanor—are relevant factors that a sentencing court may appropriately consider when fashioning a sufficient, but not greater than necessary, sentence. See Verdin-Garcia, 516 F.3d at 898–99 (finding no abuse of discretion where a district court explained its decision to impose a life sentence based on, inter alia, the fact that the defendant “displayed a ‘lack of remorse’” and a lack of “any respect for the law” (quoting R., Vol. X, at 2308)); see also United States v. Harris, 418 F. App’x 767, 772–73 (10th Cir. 2011) (unpublished) (holding, under plain-error review, that a defendant’s sentence was procedurally reasonable where the district court explained and justified the sentence based on, inter alia, the defendant’s “arrogance and abusive demeanor” and “his lack of remorse and failure to acknowledge responsibility”); United States v. Mojica-Fabian, 264 F. App’x 712, 715 (10th Cir. 2008) (unpublished) (concluding a defendant failed to rebut the presumptive reasonableness of his within-guidelines sentence where the district court relied on, inter alia, his “lack of contrition or acceptance of responsibility” in reaching its decision).15
And so have our sister circuits. See, e.g., United States v. Isaac, 987 F.3d 980, 995–96 (11th Cir. 2021) (finding the district
Similarly, the district court’s observations concerning the global drug-addiction problem had a clear nexus to Mr. Henson’s conduct and implicated
particular, the record shows Mr. Henson cavalierly distributed incredibly potent, controlled substances—in dangerous quantities and in dangerous combinations—with callous disregard for the consequences. Those consequences, of course, were dire, including the death of Nick McGovern. By way of contrast, these observations do not reflect a misguided shift in the court’s focus from sentencing Mr. Henson based on his particular circumstances to a more abstract effort to combat the global ill of drug addiction. Cf. Smart, 518 F.3d at 803 (“[I]f a district court bases a sentence on a factor not within the categories set forth in
In this regard, the court’s observations directly implicated a host of sentencing factors, including “the nature and circumstances of [Mr. Henson’s] offense and [his] history and characteristics,” and the need for his sentence to, inter alia, “reflect the seriousness” of his crimes, “promote respect for the law,” “provide just punishment for the offense,” and “afford adequate
In sum, the transcript from Mr. Henson’s sentencing hearing plainly shows that the district court expressly relied upon the
4
Having found Mr. Henson’s sentence procedurally sound, we next consider Mr. Henson’s challenge to the substantive reasonableness of his sentence. Recall “[a] substantive reasonableness sentencing challenge asks us to address ‘whether the length of the sentence is reasonable given all the circumstances of the case in light of the [
Mr. Henson does not come close to carrying his burden. While he crafted several, specific arguments challenging the procedural reasonableness of his sentence, Mr. Henson dedicates only a little over two pages in his opening brief to challenging the substantive reasonableness of that sentence, see Aplt.’s Opening Br. at 41–43—and in those pages, he offers scarcely more than his own, subjective incredulity at the district court’s sentencing decision.18 That is, Mr. Henson simply cannot believe that a life sentence was appropriate in this case. But Mr. Henson does not meaningfully engage with the fact that his sentence falls within the advisory guidelines range for his crimes—the calculation of which he did not challenge in the district court and does not challenge on appeal—and, therefore, we presume it to be substantively reasonable. Thus, while Mr. Henson may disagree with the district court’s sentencing decision, bare disagreement is not enough to establish the district court abused its discretion in imposing a life sentence—especially when we presume that the sentence at issue is reasonable. See, e.g., McComb, 519 F.3d at 1053 (explaining that the district court’s decision
to impose a sentence within the properly-calculated guidelines range “is strong evidence of the reasonableness of the . . . sentence imposed” and acknowledging the “congruence between [our] ‘abuse of discretion’ standard of review” and the presumption of substantive reasonableness enjoyed by within-guidelines sentences); Sells, 541 F.3d at 1239 (“[I]t is not [our] job . . . to review de novo the balance struck by a district court among the factors set out inMoreover, we cannot conclude that the district court exceeded the bounds of reasonableness in determining that a life sentence for Mr. Henson was justified by the circumstances of this case. The evidence presented at Mr. Henson’s trial demonstrated that his conduct left a trail of devastation and despair in communities inside and outside of Kansas. Numerous former patients and customers of Mr. Henson testified about the harm he caused and the lives he negatively impacted by his irresponsible prescribing habits and reckless indifference to those who entrusted their care to him, as a physician. Though Mr. Henson insists he only wanted to alleviate the pain of those around him, the district court could reasonably have concluded that his insistence beggared belief. As evidenced by the jury’s verdict, it was Mr. Henson himself who caused much pain—and even death—to those around him. On this record, then, the district court acted well within its considerable discretion in imposing a within-guidelines life sentence—and Mr. Henson does nothing to cast doubt on the presumption of reasonableness that sentence enjoys.
* * *
Accordingly, because Mr. Henson establishes no procedural or substantive error in the district court’s sentencing decision, we conclude that his life sentence is reasonable in all respects and affirm the district court’s decision.
D
In his fourth and final issue on appeal, Mr. Henson claims that another of the district court’s jury instructions—Instruction 25—inaccurately states the law. Instruction 25 reads, in pertinent part, as follows:
Under
21 U.S.C. § 841(a)(1) , federal law provides that “it shall be unlawful for any person knowingly or intentionally . . . to . . . distribute, or dispense or possess with the intent to distribute . . . a controlled substance.” . . . Federal regulations allow for controlled substance prescriptions that are issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. To be lawful and effective, a prescription must meet the requirements ofSection 1306.04 of Title 21 of the Code of Federal Regulations . . . . Under this regulation, a registered medical practi[t]oner may prescribe a controlled substance if she acts both for a legitimate medical purpose and while acting in the usual course of her profession. Without both, a practi[t]oner is subject to prosecution. In other words, if the Government proves beyond a reasonable doubt that a prescription was knowingly written (1) not for a legitimate medical purpose, or (2) outside the usual course of professional practice, then the exception to the Controlled Substances Act does not apply. . . .
Aplt.’s App. at 98–99 (first, second, and third omissions in original) (emphasis added) (line and paragraph breaks omitted).
Mr. Henson argues that, to convict a physician for violating
However, Mr. Henson readily “concedes that his argument is contrary to this court’s precedent.” Id. Indeed, in United States v. Nelson, 383 F.3d 1227 (10th Cir. 2004), we
Defendants ask us to revisit our prior holding that a licensed physician may be convicted under
21 U.S.C. § 841 for either prescribing “outside the scope of professional practice” or “for no legitimate medical purpose.” See United States v. Nelson, 383 F.3d 1227 (10th Cir. 2004). Because one panel may not overturn a decision by a prior panel, we must reject Defendants’ challenge. United States v. Caiba-Antele, 705 F.3d 1162, 1165 (10th Cir. 2012) (“[W]e are bound by the precedent of prior panels absent en banc reconsideration or a superceding contrary decision by the Supreme Court.” (quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993))). In any event, our prior holding in Nelson is sound. . . . Other circuits have reached the same conclusion.
United States v. Khan, 989 F.3d 806, 822 (10th Cir. 2021) (alteration in original) (additional citations and paragraph breaks omitted), petition for cert. filed, No. 21-5261 (U.S. Jul. 29, 2021).
Mr. Henson requests that we “revisit [our] holding” in Nelson, Aplt.’s Opening Br. at 11, but we are not at liberty to do so. See, e.g., United States v. De Vaughn, 694 F.3d 1141, 1149 n.4 (10th Cir. 2012) (“We cannot, of course, ‘overturn the decision of another panel of this court barring en banc reconsideration, a superseding contrary Supreme Court decision, or authorization of all currently active judges on the court.’” (quoting United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000))); see also Barnes v. United States, 776 F.3d 1134, 1147 (10th Cir. 2015). Thus, because Mr. Henson concedes that the jury instruction in question correctly stated the law under Nelson, and because we are bound by this precedent, Mr. Henson is not entitled to relief on this issue.
III
For the foregoing reasons, we conclude that Mr. Henson’s challenges on appeal are unavailing. Accordingly, we AFFIRM his convictions and sentence.
Notes
The government is correct that our forfeiture principles apply to a situation where “a litigant changes to a new theory on appeal that falls under the same general category as an argument presented at trial.” United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019) (quoting United States v. Nelson, 868 F.3d 885, 891 n.4 (10th Cir. 2017)); see Aplee.‘s Resp. Br. at 30; see also United States v. Burke, 571 F.3d 1048, 1057 (10th Cir. 2009) (“[W]hen a defendant pursues a particular theory or objection, but fails to raise another closely related argument, he has forfeited the argument and we review only for plain error.“). Thus, if Mr. Henson failed to raise in the district court the counsel-of-choice arguments he now makes on appeal, we would review this claim for, at most, plain error—provided that Mr. Henson were to make a plain error argument on appeal. See, e.g., In re Rumsey Land Co., LLC, 944 F.3d 1259, 1271-72 (10th Cir. 2019). However, we need not consider whether Mr. Henson has forfeited his counsel-of-choice claim because, as explained further infra, we conclude that Mr. Henson affirmatively abandoned this claim in the district court, thereby waiving appellate review of it entirely.