OPINION
Aрpellant Janalee Wilson, a former emergency room nurse, injected her husband with insulin on three separate occasions in an effort to cause his death so that she could collect the proceeds from several life insurance policies. On July 29, 1996, her husband died as a result of severe hypoglycеmia brought on by an injection of insulin. Soon thereafter, she submitted claims to various insurers and succeeded in collecting nearly $300,000.00 in life insurance proceеds.
On September 19, 2001, a federal jury-convicted Janalee Wilson of three counts of mail fraud in violation of 18 U.S.C. § 1341, eight counts of wire fraud in violation of 18 U.S.C. § 1343, seven cоunts of money laundering in violation of 18 U.S.C. § 1957, and returned a special verdict of liability on one count of criminal forfeiture pursuant to 18 U.S.C. § 982. At sentencing, the district court granted the government’s motion for an upward departure based on the fact that a death resulted from her fraudulent scheme, increasing her base offensе level from 23 to 33, the level corresponding to second degree murder under the Guidelines. The sentencing judge then added a two-level enhancement beсause Wilson used her special skill as a nurse to perpetrate the fraud. Using a combination of concurrent and consecutive sentences on the eighteen counts of conviction, the district court sentenced Wilson to 210 months in prison, the maximum term allowed for offense level 35 and a criminal history catеgory of I.
Wilson appeals, arguing in her brief that (1) the evidence was insufficient as a matter of law to establish beyond a reasonable doubt that she caused her husband’s death as part of a scheme to defraud; (2) the district court erred by enhancing her sentence based on her “special skill” as a nurse under § 3B1.3 of the Guidelines; and (3) the district court erred in granting an upward departure of ten levels based on the evidence and the jury’s finding that she caused her husband’s death as part of her scheme to defraud. Since the briefs were filed in this case, a panel of this Court issued its decision in
United States v. Mayle,
Section BB1.3 provides that the district court may increase the offense level by two if “the defendant ... used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. A “special skill” is defined as “a skill not possessed by members of the general public and usually requiring substаntial education, training, or licensing.”
Id.
§ 3B1.3 cmt. 2. Janalee Wilson was a licensed practical nurse working in an emergency room. In order for the enhancemеnt to apply, her skills as a licensed practical nurse must have made it “significantly ‘easier’ for [her] to commit ... the crime.”
United States v. Lewis,
On June 12, 1996, Mr. Wilson was admitted to Methodist Hospital with extremely low blood sugar. Rеcords indicate that Janalee Wilson told a nurse and other emergency workers that she had given her husband a shot of Toradal (a prescription pаin medication) at home because family members were sick with nausea and vomiting. He recovered from the incident. Medical tests later revealed thаt the high level of insulin in Mr. Wilson’s body came from an injectable source. Janalee Wilson was a Type II diabetic, requiring insulin to control her blood sugar, and had aсcess to insulin and needles at the hospital.
On July 10, 1996, Mr.Wilson was again admitted to the emergency room with low blood sugar. The defendant told hospital workers that she had given her husband a shot of Phenergan (a prescription nausea medication) the night before. Tests once again indicated a high insulin level. Mr. Wilson was referrеd to an endocrinologist, who concluded that Mr. Wilson’s glandular system functioned normally.
On July 28, 1996, Janalee Wilson was at work and called a neighbor at around 9 P.M. and asked him to check on her husband. She told the neighbor that when she left for work earlier that evening, her husband was sick and she was worried about him. She later told others that shе had checked his blood sugar before she left for work. The neighbor found Mr. Wilson unconscious in a chair. On the direction of Janalee Wilson, paramedics tоok Mr. Wilson to a different hospital from the one he had been taken to for the previous episode. Once again, he suffered from dangerously low bloоd sugar. He stayed only a few hours, and the doctor released him to the care of Janalee Wilson based on his understanding of her training and expertise. (J.A. at 152-53.)
The next morning, Mr. Wilson was taken by paramedics to the emergency room with low blood sugar. Mr. Wilson later died as a result of a prolonged episode of hypоglycemia caused by an injection of insulin. At trial, the district judge specifically instructed the jury that, in order to convict Janalee Wilson of mail fraud, it must first find that she causеd her husband’s death by injecting him with insulin.
At sentencing, the district court ruled that “the defendant did use a special skill, that of being a nurse. She injected the defendant with Toradol and Phеnergan, and she said she did, and she told that to the doctors in an effort to cover up the fact that she had, in fact, injected him with insulin. She was using a special skill.” (J.A. at 356.)
Titlе 18, § 3742(e) provides for the standard of appellate review in guidelines cases, stating in relevant part:
The court of appeals shall give due regard tо the opportunity of the district *450 court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly еrroneous and ... shall give due deference to the district court’s application of the guidelines to the facts.
18 U.S.C. § 3742(e) (2003). We cannot say the district court’s faсtual findings were erroneous, or the “application of the guidelines to the facts” unreasonable. The evidence in the record fully supports the finding that Wilson’s training and licensing as an emergency room nurse enabled her to obtain medications and administer them in an injectable form in order to set the stage for her crime and to divert suspicion from herself. Although a member of the general public might be able to buy insulin and hypodermic needles at a drug store, such a lay person would not have been able to rely on her skills as a nurse to obtain pain medication in injectable form and to administer it to her family member at home in order to provide logical explanations for the injections as a way to conceal her crime. Without known nursing expertise and experience, the layperson’s claim to have medicated her husband at home with injectable forms of prescription medications would no doubt have promptеd further investigation. Indeed, Mr. Wilson’s treating physician, Dr. David M. Larsen, testified that typically he provides injecta-ble pain medications only to terminal cancer patients, but that he “certainly could have” made an exception with Janalee Wilson because she was a nurse.
{See
J.A. at 55.) As noted above, another physician witness testified that he felt comfortable releasing Mr. Wilson to the care of Janalee Wilson on the night of July 28, 2003 because of her special training аs a nurse and expertise. In short, her special skill as a nurse made it significantly ‘easier’ for [her] to “commit ... the crime.”
United States v. Lewis,
The sentence is AFFIRMED.