mackay appeal

CASE NO. 14-4093

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff/Appellant,

v.

DEWEY C. MACKAY, III,

Defendant/Appellee.

On Appeal from the United States District Court For the District of Utah, Northern Division The Honorable Dee Benson, District Judge

BRIEF FOR THE UNITED STATES OF AMERICA

CARLIE CHRISTENSEN Acting United States Attorney District of Utah

ELIZABETHANNE C. STEVENS Assistant United States Attorney 185 South State Street, Suite 300 Salt Lake City, Utah 84111-1506 Telephone (801) 524-5682 [email protected]

Attorneys for Plaintiff/Appellant

ORAL ARGUMENT IS REQUESTED

Appellate Case: 14-4093 Document: 01019355230 Date Filed: 12/12/2014 Page: 1

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... iii

STATEMENT OF PRIOR AND RELATED APPEALS ..................................................... iv

STATEMENT OF JURISDICTION .................................................................................. 1

STATEMENT OF THE ISSUE ......................................................................................... 1

STATEMENT OF THE CASE ......................................................................................... 2

STATEMENT OF FACTS ............................................................................................... 3

1. Conviction and Sentencing .................................................................... 3

2. MacKay’s Direct Appeal ....................................................................... 5

3. Petition for Writ of Certiorari................................................................ 8

SUMMARY OF THE ARGUMENT ................................................................................14

STANDARD OF REVIEW ............................................................................................14

ARGUMENT ..............................................................................................................15

The District Court Erred on Remand When It Vacated MacKay’s Enhanced Penalty Convictions for Drug Distributions Resulting in Death, Which Were Affirmed on Appeal under the Correct Legal Standard, Where the Scope of the Limited Remand was Confined to Narrow Resentencing Issues and the Court’s Invocation of the Exception to the Mandate Rule for a Dramatic Change in Controlling Legal Authority Was Improper Because There Was No Such Change. ..........................................................................................15

1. The Mandate Rule Limited the Remand to Clarification of the Sentence ..............................................................................16

2. The District Court Incorrectly Concluded that Burrage Was a Dramatic Change in Controlling Legal Authority. ........17


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CONCLUSION ............................................................................................................22

ORAL ARGUMENT STATEMENT

CERTIFICATE OF SERVICE

CERTIFICATION OF DIGITAL SUBMISSIONS

ATTACHMENT A – United States v. MacKay, 1:10CR00094-DB, Docket No. 377, 05/07/2014 Memorandum Decision and Order

ATTACHMENT B – United States v. MacKay, 715 F.3d. 807 (10th Cir. 2013), 04/20/2013 Opinion

ATTACHMENT C – United States v. MacKay, 1:10CR00094-DB, Docket No. 395, 07/09/2014 Amended Judgment

ATTACHMENT D – United States v. MacKay, 1:10CR00094-DB, Docket No. 396, 07/10/2014 Amended Judgment


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TABLE OF AUTHORITIES

CASES PAGE

Burrage v. United States, -- U.S. --, 134 S. Ct. 881 (2014) ........................... passim

Ford v. United States, No. 13-5997, 134 S. Ct. 1274 (Feb. 24, 2014) .................. 21

Gall v. United States, 552 U.S. 38 (2007) ............................................................... 8

State v. Frazier, 339 Mo. 966, 98 S.W.2d 707 (1936) .......................................... 19

United States v. Cummings, 395 F.3d 392 (7th Cir. 2005) ...................................... 7

United States v. MacKay, -- F. Supp. 2d --, 2014 WL 1813147 (D. Ut. 2014) ..... 12

United States v. Mackay, 715 F.3d 807 (10th Cir. 2013) ............. 2-8, 16-17, 20-22

United States v. Moore, 83 F.3d 1231 (10th Cir. 1996) .................................. 13, 16

United States v. Shipp, 644 F.3d 1126 (10th Cir. 2011) ........................................ 14

United States v. Ward, 626 F.3d 179 (3rd Cir. 2010) .............................................. 7

United States v. Webb, 98 F.3d 585 (10th Cir. 1996) ............................................ 16

United States v. West, 646 F.3d 745 (10th Cir. 2011) ........................................... 17

United States v. Woodard, 938 F.2d 1255 (11th Cir. 1991) .................................... 7

STATUTES

18 U.S.C. § 3553(a) ................................................................................................. 8

18 U.S.C. § 3742(b) ................................................................................................. 1

21 U.S.C. § 841 ........................................................................................................ 9

21 U.S.C. § 841(a)(l) ...................................................................................... 2-3, 17

21 U.S.C. § 841(b)(1)(C) .................................................................... 2-3, 10, 17-18


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21 U.S.C. § 841(b)(1)(E) ..................................................................................... 2-3

28 U.S.C. § 1291 ...................................................................................................... 1

STATEMENT OF PRIOR AND RELATED APPEALS

MacKay v. Drug Enforcement Administration, No. 10-9556

United States v. MacKay, No. 12-4001


IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT


Plaintiff/Appellant,

vs. DEWEY C. MACKAY, III,

Defendant/Appellee.

No. 14-4093 BRIEF FOR THE UNITED STATES

STATEMENT OF JURISDICTION

Pursuant to 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291, this Court has

jurisdiction over this appeal from the final order of the district court sentencing

Dewey MacKay to three years of imprisonment. The Solicitor General has approved

this appeal. The court’s order was filed on July 9, 2014, and the United States filed a

timely notice of appeal on August 8, 2014.

STATEMENT OF THE ISSUE

Whether the district court erred on remand when it vacated MacKay’s

enhanced penalty convictions for drug distributions resulting in death, which were

affirmed on appeal under the correct legal standard, where the scope of the limited

remand was confined to narrow resentencing issues and the court’s invocation of the


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exception to the mandate rule for a dramatic change in controlling legal authority

was improper because there was no such change.

STATEMENT OF THE CASE

Following a limited sentencing remand from this Court, the district court

exceeded the scope of the remand and ruled that exceptions to the mandate rule and

the law of the case permitted it to vacate drug distribution convictions that had been

affirmed by this Court. (Aplt. App. Vol. I at 313-330; Memorandum Decision and

Order, Doc. 377 (Attachment A).) MacKay’s conviction on count one for

distribution of a Schedule II controlled substance (oxycodone) with use resulting in

David Wirick’s death (21 U.S.C. §§ 841(a)(l) and 841(b)(l)(C)), punishable by a

twenty-year mandatory minimum and up to life, had been affirmed by this Court

following MacKay’s direct appeal. United States v. Mackay, 715 F.3d 807, 813

(10th Cir. 2013) (“MacKay I”) (Attachment B & Aplt. App. Vol. II at 348-88).

Count two, distribution of a Schedule III controlled substance (hydrocodone) with

use resulting in Wirick’s death (21 U.S.C. §§ 841(a)(l) and 841(b)(1)(E)),

punishable by imprisonment up to fifteen years, also was affirmed by this Court

following MacKay’s direct appeal. Id. In Mackay I, this Court affirmed MacKay’s

twenty-year sentence on count one, but issued a limited remand. Having determined

that the district court did not impose individual sentences on each count, and noting

that the twenty-year sentence on count one was below the guideline range, this Court


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issued a “limited remand . . . to allow the district court to clarify the sentence for the

record” and “to explain why the sentence it imposes is sufficient, but not greater than

necessary to satisfy the sentencing objectives.” MacKay I, 715 F.3d at 846-47 &

n.22. Following the remand, the district court vacated MacKay’s enhanced penalty

convictions for drug distributions resulting in death and sentenced MacKay to

thirty-six months of imprisonment on the lesser included offense of distribution.

(Aplt. App. Vol. I at 336-47; Judgment dated 7/9/14, Doc. 395 (Attachment C);

Judgment dated 7/10/14, Doc. 396 (Attachment D).)

STATEMENT OF FACTS

1. Conviction and Sentencing

In August 2011, a jury convicted former doctor Dewey MacKay on forty

counts of illegal drug distribution and related offenses. MacKay I, 715 F.3d at 813.

Three counts involved using a telephone in furtherance of drug distribution and

thirty-seven counts involved unlawfully distributing Schedule II and III controlled

substances. Id. Among the counts of conviction were counts one and two, which

alleged distribution of a Schedule II controlled substance (oxycodone) with use

resulting in David Wirick’s death (21 U.S.C. §§ 841(a)(l) and 841(b)(l)(C)),

punishable by a twenty-year mandatory minimum and up to life (count one), and

distribution of a Schedule III controlled substance (hydrocodone) with use resulting

in Wirick’s death (21 U.S.C. §§ 841(a)(l) and 841(b)(1)(E)), punishable by


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imprisonment up to fifteen years (count two).1 MacKay I, 715 F.3d at 813, 825 &

n.10. The jury returned a special verdict and concluded that the use of the

oxycodone in count one resulted in Wirick’s death and the use of the hydrocodone in

count two resulted in Wirick’s death. (Aplt. App. Vol. I at 56-91.)

Following the jury verdict, the district court denied MacKay’s motion for

judgment of acquittal. MacKay I, 715 F.3d at 825. The district court, in rejecting

MacKay’s Rule 29 motion on the death counts, noted that the jury had evidence

from four doctors on whether the drugs caused Wirick’s death. (Aplt. App. Vol. I at

98.) One of the doctors, toxicologist Stacy Hail, “testified that Mr. Wirick would not

have died but for the Oxycodone and Hydrocodone.” (Id. at 98-99.) In addition,

“Dr. Frikke’s autopsy report noted the cooperative effects of the Hydrocodone and

Oxycodone as the cause of death.” (Id. at 98.) “Dr. Grey testified that he agreed

with Dr. Frikke’s report, but added the complication of pneumonia as a contributing

factor to Mr. Wirick’s death.” (Id. at 99.) “MacKay’s expert, Dr. Baden, opined that

Mr. Wirick died of pneumonia and that the Oxycodone and Hydrocodone did not

cause Mr. Wirick’s death.” (Id.) The district court concluded, “Although there was

conflicting evidence regarding the cause of death, the evidence that the Oxycodone

and Hydrocodone caused Mr. Wirick’s death was sufficient that the jury reasonably

1 A detailed recitation of the facts is found in this Court’s opinion. MacKay I, 715 F.3d at 813-23, 825-30.


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could conclude beyond a reasonable doubt that the use of the Oxycodone and

Hydrocodone resulted in Mr. Wirick’s death.” (Id.)

At sentencing, the court imposed the mandatory minimum sentence of twenty

years, but did not sentence individually on each count. MacKay I, 715 F.3d at 846.

In imposing sentence, the court stated that twenty years was “too long,” but

“Congress has imposed this law, not me.” Id. at 846, n.22.

2. MacKay’s Direct Appeal

MacKay appealed his convictions on all but ten counts. Id. at 814, n.4.

Among other things, MacKay challenged the sufficiency of the evidence and the

jury instructions. Id. at 813-14, 825-30, 834. He also asserted that the court erred

when it did not specify individual sentences for each offense. Id. at 846.

On April 30, 2013, this Court affirmed MacKay’s convictions and, with

respect to counts one and two, rejected MacKay’s assertion that the evidence was

insufficient for a jury to conclude that the use of the oxycodone and hydrocodone

resulted in Wirick’s death. Id. at 828-30. This Court concluded:

Viewing this evidence in the light most favorable to the Government, a reasonable jury could conclude beyond a reasonable doubt that the oxycodone by itself and the hydrocodone by itself resulted in Wirick’s death.

. . .

Although Hail did not explicitly state the hydrocodone alone could have killed Wirick or the oxycodone alone could have killed Wirick, the testimony Hail provided, viewed in the light most favorable to the


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Government, could allow the jury to reasonably infer that the oxycodone alone caused Wirick’s death and that the hydrocodone alone caused Wirick’s death. At a motion hearing on September 21, 2011, Defendant argued Hail’s testimony was “completely irrational and completely ridiculous.” Aplt. App’x 400. But the jury had every right to find Hail, a board certified toxicologist testifying that blood toxicity levels do not matter, more credible than Grey or Baden and to disregard any testimony it deemed not credible. Accordingly, we conclude no error, plain or otherwise, exists as to the sufficiency of the evidence on both counts 1 and 2.

Id. at 830.

For the same reasons it rejected the sufficiency challenge, this Court rejected

MacKay’s claim that “the district court erred in denying his Rule 29 motion because

reasonable doubt existed that Wirick’s death resulted from the medications

Defendant prescribed.” Id. at 830, n.15.

In addition to affirming the death counts, this Court also concluded that “the

evidence in this case is quite sufficient to support Defendant’s convictions on the

non-death counts.” Id. at 823.

MacKay also challenged the jury instructions on the death counts. Id. at 834.

However, this Court concluded that MacKay waived his claims that the district court

did not fully inform the jury of the law on proximate cause and that the instructions

caused confusion because the court did not define “reasonably foreseeable

consequence.” Id. The district court, on multiple occasions, requested assistance in

drafting the jury instruction at issue and specifically asked for assistance on defining

for the jury “what death resulting from the use of the drugs means.” Id. Because


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MacKay did not object to the instruction, “especially when invited by the district

court to assist in the drafting [sic] the instruction,” he forfeited the issue. Id.

Moreover, because he failed to argue for plain error on appeal, this Court declined to

review MacKay’s “waived challenge” to the jury instruction. Id.

This Court concluded that MacKay’s twenty-year sentence did not violate the

Eight Amendment’s prohibition on cruel and unusual punishment or the Fifth

Amendment’s Due Process Clause. Id. at 845. However, MacKay did prevail on

one issue when this Court agreed that it was error for the district court to impose a

general twenty-year sentence of imprisonment, rather than specifying individual

sentences for each count of conviction. Id. at 846-47. A twenty-year sentence

exceeded the statutory maximum sentence for nine of the counts. Id. at 846. This

Court explained:

The 240-month total sentence is problematic only for counts 2, 4-7, 15-17, and 108.

. . .

We could easily assume from the Guidelines that the district court sentenced Defendant to 240 months on counts 1, 8-14, 18-26, 32-35, 41-42, 81-84, 120-121, and 123-124; that he sentenced Defendant to 180 months on count 2; 120 months on counts 4-7 and 108; and 48 months on counts 15-17. And we could further assume that the sentences were imposed to run concurrently. But the judgment is unclear whether the district court intended to impose a 240-month sentence on each count, a clearly illegal sentence. See e.g. United States v. Ward, 626 F.3d 179, 184 (3rd Cir. 2010); United States v. Cummings, 395 F.3d 392, 400 (7th Cir. 2005); United States v. Woodard, 938 F.2d 1255, 1257 (11th Cir. 1991). Accordingly, a


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limited remand is necessary to allow the district court to clarify the sentence for the record.

AFFIRMED IN PART and REMANDED for resentencing.

Id. at 846-47.

The Court further stated, in a footnote:

The district court stated the sentence it imposed, the statutory minimum on count 1, was “too long,” but “Congress has imposed this law, not me.” [Citation omitted.] The court obviously varied downward in imposing a sentence of 240 months, but did not articulate its reasoning. After a sentencing judge considers all of the factors listed in 18 U.S.C. § 3553(a) and makes an individualized assessment based on the facts presented, the judge “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007). Accordingly, at re-sentencing, the court needs to explain why the sentence it imposes is sufficient, but not greater than necessary to satisfy the sentencing objectives.

Id. at 846-47, n.22.

On May 14, 2013, MacKay filed with this Court a petition for rehearing en

banc. (Aplt. App. Vol. II at 389-408.) He argued that the Court’s opinion

overlooked his argument that the government was required to prove each element of

counts one and two and he continued to claim there was insufficient evidence that

the oxycodone and hydrocodone resulted in Wirick’s death. (Id. at 398-403.) The

Court denied the petition and the mandate issued on June 5, 2013. (Id. at 409-10.)

3. Petition for Writ of Certiorari

On August 26, 2013, MacKay filed a petition for a writ of certiorari with the

United States Supreme Court. (Id. at 412-39.) The question presented in the petition


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was “[w]hen a defendant is charged with two counts of distributing two different

drugs resulting in a single death under 21 U.S.C. § 841, can a jury convict the

defendant of both counts when no evidence was presented that either drug alone was

sufficient to cause death.” (Id. at 413.) In his petition, MacKay argued that the

Supreme Court “should intervene and correct the Tenth Circuit’s holding affirming

the convictions in this case because there was no evidence to support the inference

that either of the two drugs was independently sufficient to cause death.” (Id. at 436

(capitalization altered from original).)

The Solicitor General filed a memorandum requesting that MacKay’s petition

be held pending the Court’s resolution in Burrage v. United States, -- U.S. --, 134 S.

Ct. 881 (2014), “and then disposed of as appropriate in light of the decision in that

case.” (Aplt. App. Vol. II at 441-42.) The questions presented in Burrage were

“[w]hether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is

a strict liability crime, without a foreseeability or proximate cause requirement”; and

“[w]hether a person can be convicted for distribution of heroin causing death

utilizing jury instructions which allow a conviction when the heroin that was

distributed ‘contributed to,’ death by ‘mixed drug intoxication,’ but was not the sole

cause of death of [a] person.” (Id.)

On January 27, 2014, the Supreme Court issued its ruling in Burrage. The

Court held that, “at least where use of the drug distributed by the defendant is not an


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independently sufficient cause of the victim’s death or serious bodily injury, a

defendant cannot be liable under the penalty enhancement provision of 21 U.S.C.

§ 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” Burrage,

134 S. Ct. at 892.

On February 24, 2014, the Supreme Court denied MacKay’s certiorari

petition. (Aplt. App. Vol. II at 443.)

4. Sentencing Remand

Following the Supreme Court’s denial of the certiorari petition, MacKay filed

in the district court a Motion with Respect to Resentencing and Memorandum in

Support in which he argued, among other things, that the Tenth Circuit remanded for

a de novo resentencing and Burrage was new, controlling legal authority that

allowed the court to exceed the scope of the remand and required reversal of

MacKay’s convictions on the death counts. (Aplt. App. Vol. I at 113-24.)

The United States opposed the motion and argued that the mandate rule and

the law of the case doctrine barred the district court from reopening the “resulting in

death” determinations for counts one and two and that the twenty-year mandatory

minimum term remained. (Aplt. App. Vol. I at 218-304.) The government asserted

that the remand was limited to narrow resentencing issues and this Court’s remand

for resentencing did not reopen for reconsideration the validity of the underlying

convictions. (Id. at 223-27.) Moreover, the government noted that Burrage was not


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a dramatic change in controlling authority because the Court of Appeals anticipated

and applied the Supreme Court’s standard when it concluded that a reasonable jury

could conclude, beyond a reasonable doubt, that the hydrocodone alone and the

oxycodone alone resulted in Wirick’s death. (Id. at 228.) The government also

explained that “the imposition of the mandatory minimum sentence for Count 1

[was] not subject to being reopened, inasmuch as the convictions for both counts and

sentence for Count 1 were affirmed on appeal . . . making the matter the law of the

case.” (Id. at 229.)

MacKay filed a reply and, on April 15, 2014, the district court held a hearing.

(Aplt. App. Vol. I at 305-11; Aplt. App. Vol. II at 444-81.) At the hearing,

MacKay’s counsel conceded that, during his appeal, “for all intents and purposes, it

seems like the Tenth Circuit adopted Burrage and adopted our theory of the law but

then misapplied the facts.” (Aplt. App. Vol. II at 460; id. at 457 (“[T]he Tenth

Circuit did say expressly that the proof required would have been in and of itself that

oxycodone was responsible for the death and hydrocodone was responsible for the

death. So essentially they adopted our theory that we argued on appeal.”); see also

id. at 477 (district court: “you told [the Court of Appeals] the right standard and they

said there were sufficient facts to support it.”); id. at 478 (district court: “They did

seem to have the right standard, and you [MacKay’s counsel] even admit that in your

brief.”; “They got the standard right and the result wrong.”).)


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The government argued that the remand was limited and agreed with

MacKay’s counsel that, in MacKay I, this Court essentially applied the causation

standard later articulated in Burrage. (Id. at 463, 466-67.) As a result, Burrage was

not a dramatic change in controlling legal authority in MacKay’s case such that the

district court could depart from the mandate. (Id. at 468-69.) The court took the

matter under advisement. (Id. at 480.)

On May 7, 2014, the Court issued a Memorandum Decision and Order

“vacat[ing] MacKay’s enhanced penalty convictions on Counts 1 and 2,” and

imposing a new sentence of thirty-six months’ incarceration and no supervised

release. (Aplt. App. Vol. I at 323, 329; United States v. MacKay, -- F. Supp. 2d --,

2014 WL 1813147 (D. Ut. 2014).)

The court explained the previous sentence it imposed as follows:

On December 19, 2011, this Court sentenced MacKay to 240 months incarceration due to the mandatory minimum penalty for his conviction on Count 1. Given the 20-year sentence on Count 1, the Court stated that the sentence for the other counts would be less than 20 years and would run concurrently to the sentence on Count 1. The Court did not specify a sentence for the other counts even though nine of the counts had a maximum statutory term of imprisonment below 240-months (Counts 2, 4-7, 15-17, and 108). (Dkt. Nos. 286, 287.) The Court also was not requested and did not explain in any detail why it departed downward from the advisory Guideline range in its sentence for Count 1.

(Aplt. App. Vol. I at 315-16.)


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The court noted that a district court may depart from an appellate court’s

mandate under exceptional circumstances, including “(1) a dramatic change in

controlling legal authority; (2) significant new evidence that was not earlier

obtainable through due diligence but has since come to light; or (3) [if] blatant error

from the prior sentencing decision would result in serious injustice if uncorrected.”

(Id. at 318 (citing United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996)).)

The court concluded that the Supreme Court’s interpretation of the phrase “resulted

from” in Burrage was “the precise type of ‘dramatic change in controlling legal

authority’ contemplated by Moore.” Id. at 320.

Because the court failed to impose its sentence in open court, and for other

reasons, the government moved for a sentencing hearing, which was held on July 1,

2014.2 (Aplt. App. Vol. I at 331-33; Aplt. App. Vol. II at 482-561.) The court again

imposed a 36-month sentence and stated that it was “not sentencing de novo,” but

was “sentencing in light of changed circumstances.” (Aplt. App. Vol. II at 510,

558.) On July 9, 2014, an amended judgment was docketed reflecting the 36-month

sentence. (Aplt. App. Vol. I at 336-41.) A second amended judgment was filed on

July 10, 2014, which removed the “resulting in death” language from counts one and

two. (Id. at 342-47.)

2 The filings associated with the sentencing hearing are not relevant to the issue on appeal.


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SUMMARY OF THE ARGUMENT

The district court erred on remand when it vacated MacKay’s enhanced

penalty convictions for drug distributions resulting in death. As the district court

acknowledged, the scope of the remand was limited. Therefore, in order to go

beyond the scope of the limited remand, the court invoked an exception to the

mandate rule for dramatic changes in controlling legal authority. The court’s

conclusion that the Supreme Court’s decision in Burrage v. United States was such a

dramatic change was in error. As the parties and the district court acknowledged,

this Court applied the causation standard ultimately set forth in Burrage when it

affirmed MacKay’s resulting in death convictions on appeal. Therefore, there was

no dramatic change in controlling legal authority applicable to MacKay’s case and

the matter should be remanded to the district court for reinstatement of the resulting

in death convictions and reimposition of the mandatory minimum twenty-year

sentence on count one.

STANDARD OF REVIEW

“Interpretation of the mandate is an issue of law that [the Court] review[s] de

novo.” United States v. Shipp, 644 F.3d 1126, 1129 (10th Cir. 2011).


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ARGUMENT

The District Court Erred on Remand When It Vacated MacKay’s Enhanced Penalty Convictions for Drug Distributions Resulting in Death, Which Were Affirmed on Appeal under the Correct Legal Standard, Where the Scope of the Limited Remand was Confined to Narrow Resentencing Issues and the Court’s Invocation of the Exception to the Mandate Rule for a Dramatic Change in Controlling Legal Authority Was Improper Because There Was No Such Change.

This Court’s limited remand to clarify sentencing matters did not permit the

district court to vacate MacKay’s enhanced penalty convictions on counts one and

two, which were affirmed by this Court. The case was remanded for the limited

purpose of having the district court assign specific sentences to counts other than

count one and to explain why it departed below the guidelines in imposing the

twenty-year sentence.

The district court, recognizing that the remand was limited, erroneously

believed that it could go beyond the remand based on its conclusion that the

Supreme Court’s decision in Burrage v. United States, -- U.S. --, 134 S. Ct. 881

(2014), was a dramatic change in controlling legal authority. However, as the

parties and the district court recognized, this Court applied to MacKay’s case the

standard that ultimately was adopted in Burrage. As a result, there was no dramatic

change in the law to apply to MacKay’s case and the mandate should be enforced.


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1. The Mandate Rule Limited the Remand to Clarification of the Sentence

The mandate rule generally requires a district court to conform to the

articulated appellate remand. United States v. Webb, 98 F.3d 585, 587 (10th Cir.

1996). However, the rule is a discretion-guiding rule subject to exception in the

interests of justice. United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996). A

district court may depart from an appellate court’s mandate under exceptional

circumstances, including: “(1) a dramatic change in controlling legal authority;

(2) significant new evidence that was not earlier obtainable through due diligence

but has since come to light; or (3) that blatant error from the prior sentencing

decision would result in serious injustice if uncorrected.” Id.

The mandate in this case was clear. This Court affirmed MacKay’s

convictions (including the two resulting in death counts); upheld the twenty-year

sentence on count one against MacKay’s Eighth and Fifth Amendment challenges;

and remanded for the district court to clarify the sentence. MacKay I, 715 F.3d at

813, 842-47. The purpose of the “limited remand” was “to allow the district court to

clarify the sentence for the record” and “to explain why the sentence it imposes is

sufficient, but not greater than necessary to satisfy the sentencing objectives.” Id. at

846-47 & n.22. The remand was necessary, the Court concluded, because the

judgment set forth a twenty-year sentence, but did not assign specific sentences to

specific counts of conviction. That mattered because nine of the counts of


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conviction carried statutory maximums that were lower than twenty years.

Significantly, this Court had no problem with the twenty-year sentence imposed on

count one. See id. at 846 (“The 240-month total sentence is problematic only for

counts 2, 4-7, 15-17, and 108.”).

Although MacKay argued that this Court’s remand permitted a de novo

resentencing, the district court properly concluded that the remand was limited. See

Aplt. App. Vol. II at 510 (“I am not sentencing de novo.”); United States v. West,

646 F.3d 745, 749 (10th Cir. 2011) (“the scope of the mandate on remand in the

Tenth Circuit is carved out by exclusion: unless the district court’s discretion is

specifically cabined, it may exercise discretion on what may be heard.”). Because

the remand was limited, the district court recognized that it could go beyond the

explanatory sentencing issues identified by this Court only if one of the exceptions

to the mandate rule applied. Here, the district court incorrectly concluded that

Burrage was a dramatic change in controlling legal authority that authorized it to

depart from the limited explanatory remand and vacate convictions and a

twenty-year sentence that had already been affirmed.

2. The District Court Incorrectly Concluded that Burrage Was a Dramatic Change in Controlling Legal Authority.

Burrage was not a dramatic change in controlling legal authority. In that case,

Marcus Burrage was charged, pursuant to 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), with


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unlawfully distributing heroin, which use resulted in Joshua Banka’s death.

Burrage, 134 S. Ct. at 885. Banka, a long-time heroin user who had recently

purchased one gram of heroin from Burrage, had multiple drugs in his system at the

time of his death. Id. The toxicologist who testified at trial “could not say whether

Banka would have lived had he not taken the heroin,” but did conclude that the

heroin “was a contributing factor” in Banka’s death. Id. The medical examiner

testified that the cause of death was “‘mixed drug intoxication’ with heroin,

oxycodone, alprazolam, and clonazepam all playing a ‘contributing’ role.” Id. at

886. The trial court denied Burrage’s Rule 29 motion in which he argued that

Banka’s death did not result from heroin use because there was no evidence the

heroin was a but-for cause of death. Id. In addition, the court declined to give

Burrage’s proposed instructions on causation and, instead, advised the jury that the

government was only required to prove that the heroin Burrage distributed “was a

contributing cause of” Banka’s death. Id.

The Supreme Court concluded that a contributing cause standard was

incorrect. The Court held that, “at least where use of the drug distributed by the

defendant is not an independently sufficient cause of the victim’s death or serious

bodily injury, a defendant cannot be liable under the penalty enhancement provision

of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.”

Id. at 892.


19

Burrage requires that the use of the drug alleged to have resulted in death was

either an independently sufficient cause of death or the but-for cause of death. A

drug is an independently sufficient cause of death where the victim would have died

from the use of the drug alone. Id. at 890 (explaining that an independently

sufficient cause of death is one where Banka would have died from the heroin use

alone). But-for causation was explained by the Burrage Court as follows:

“[W]here A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died.” LaFave 467-468 (italics omitted). The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so -- if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived. See, e.g., State v. Frazier, 339 Mo. 966, 974-975, 98 S.W.2d 707, 712-713 (1936).

This but-for requirement is part of the common understanding of cause. Consider a baseball game in which the visiting team’s leadoff batter hits a home run in the top of the first inning. If the visiting team goes on to win by a score of 1 to 0, every person competent in the English language and familiar with the American pastime would agree that the victory resulted from the home run. This is so because it is natural to say that one event is the outcome or consequence of another when the former would not have occurred but for the latter. It is beside the point that the victory also resulted from a host of other necessary causes, such as skillful pitching, the coach’s decision to put the leadoff batter in the lineup, and the league’s decision to schedule the game. By contrast, it makes little sense to say that an event resulted from or was the outcome of some earlier action if the action merely played a nonessential contributing role in producing the event. If the visiting team wound up winning 5 to 2 rather than 1 to 0, one would be


20

surprised to read in the sports page that the victory resulted from the leadoff batter’s early, non-dispositive home run.

Where there is no textual or contextual indication to the contrary, courts regularly read phrases like “results from” to require but-for causality.

Id. at 888.

In MacKay I, the Court of Appeals applied the independently sufficient cause

of death standard and stated that “a reasonable jury could conclude beyond a

reasonable doubt that the oxycodone by itself and the hydrocodone by itself resulted

in Wirick’s death.” MacKay I, 715 F.3d at 830. This Court applied, pre-Burrage,

one of the standards specifically endorsed by Burrage.

Both parties and the district court acknowledged that this Court applied in

MacKay I the standard later set forth in Burrage. MacKay’s counsel conceded, “for

all intents and purposes, it seems like the Tenth Circuit adopted Burrage and

adopted our theory of the law,” but then argued that this Court “misapplied the

facts.” (Aplt. App. Vol. II at 460; see also id. at 457 (“[T]he Tenth Circuit did say

expressly that the proof required would have been in and of itself that oxycodone

was responsible for the death and hydrocodone was responsible for the death. So

essentially they adopted our theory that we argued on appeal.”).) The district court

agreed and observed, “They did seem to have the right standard, and you [MacKay’s

counsel] even admit that in your brief.” (Id. at 478; see also id. at 477 (“you told [the

Court of Appeals] the right standard and they said there were sufficient facts to


21

support it”).)3 The district court’s conclusion in its written order that Burrage

justified invocation of an exception to the mandate rule for a dramatic change in

controlling legal authority is entirely inconsistent with these acknowledgements.

Because this Court applied the independently sufficient causation standard,

Burrage presented no dramatic change in controlling legal authority. Moreover, the

Supreme Court’s decision denying MacKay’s certiorari petition underscores the fact

that Burrage did not impact MacKay’s case. MacKay’s petition raised a

Burrage-type question and, after deciding Burrage, the Supreme Court denied

MacKay’s petition. It did not remand the case to the Court of Appeals for

reconsideration in light of Burrage, which is what the Supreme Court did, on the

very same day as MacKay’s denial, in Ford v. United States, No. 13-5997, 134 S. Ct.

1274 (Feb. 24, 2014) (granting certiorari, vacating judgment, and remanding to the

Eighth Circuit for further consideration in light of Burrage).

The district court erred when it concluded that the exception to the mandate

rule for dramatic changes in controlling legal authority applied. Because the remand

was limited and there was no dramatic change in controlling law, the district court

was not authorized to go beyond the scope of the mandate, which was limited to

3 The government referred to the Burrage standard in the district court as but-for causation. See, e.g., Aplt. App. Vol. II at 463, 466. As explained above, Burrage requires but-for causation or independently sufficient causation. This Court applied the standard for independently sufficient causation in MacKay I.


22

having the district court “clarify the sentence for the record” and explain why it

varied downward. MacKay I, 715 F.3d at 846-47 & n.22. Despite raising numerous

issues on appeal, the only issue on which MacKay prevailed was his challenge to the

district court’s general sentence and this Court did not vacate MacKay’s twenty-year

sentence on count one. Instead, this Court “affirmed in part and remanded for

resentencing.” Id. at 847. As a result, the mandate should be enforced, the resulting

in death convictions reinstated, and the twenty-year mandatory minimum sentence

on count one reimposed.

CONCLUSION

For the foregoing reasons, this Court should remand to the district court for

reinstatement of the resulting in death convictions in counts one and two and for the

reimposition of the mandatory minimum twenty-year sentence on count one.


23

ORAL ARGUMENT STATEMENT

Oral argument, at which the United States can respond to any questions or

concerns, would be of material assistance to the Court.

RESPECTFULLY SUBMITTED this 12th day of December, 2014.

CARLIE CHRISTENSEN Acting United States Attorney

/s/ Elizabethanne C. Stevens ELIZABETHANNE C. STEVENS Assistant United States Attorney Utah Bar No. 7314 185 South State Street, Suite 300 Salt Lake City, Utah 84111 801-325-3357 [email protected]


mailto:[email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I am an employee of the United States Attorney's

Office, and an electronic copy via the ECF system of the foregoing BRIEF FOR

THE UNITED STATES were served to all parties named below, this 12th day of

December, 2014.

Peter Stirba Nathan Crane Kathleen Abke Stirba & Associates 215 South State Street, Ste. 750 Salt Lake City, UT 84111

/s/ Stephanie Reinhart STEPHANIE REINHART Legal Assistant 185 South State Street, Suite 300 Salt Lake City, Utah 84111 (801) 325-3345 [email protected]



CERTIFICATION OF DIGITAL SUBMISSIONS

I HEREBY CERTIFY that I am an employee of the United States Attorney’s

Office, and that

(1) All required privacy redactions have been made and, with the exception

of any redactions, every document submitted in Digital Form or

scanned PDF format is an exact copy of the written document filed with

the clerk; and

(2) The ECF submission has been scanned for viruses with the most recent

version of “Trend Micro OfficeScan,” version number 10.6.2108, last

updated December 11, 2014, and according to the program, are free of

viruses.

/s/ Stephanie Reinhart STEPHANIE REINHART Legal Assistant 185 South State Street, Suite 300 Salt Lake City, Utah 84111 (801) 325-3345 [email protected]



ATTACHMENT A

United States v. MacKay, No. 1:10CR00094-DB

Memorandum Decision and

Order


1

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH

NORTHERN DIVISION


Plaintiff, MEMORANDUM DECISION

AND ORDER

vs.

DEWEY C. MACKAY, III,

Defendant.

Case No. 1:10-CR-94

Judge Dee Benson

Before the Court is the resentencing of Defendant Dewey C. MacKay, III. On March 18,

2014, MacKay filed a Motion with Respect to Resentencing. (Dkt. No. 370.) On March 29,

2014, the Government filed its Response. (Dkt. No. 371.) In its Response, the Government

incorporated by reference its Supplemental Sentencing Memorandum. (Dkt. No. 372.) The

Court heard oral argument on April 15, 2014, Peter Stirba and Jeffrey Mann appearing on behalf

of MacKay; Michael Kennedy, Richard Daynes, and Carlos Esqueda appearing on behalf of the

United States. Having considered the parties’ briefs, arguments, and the relevant law, the Court

now issues the following memorandum decision and order.

BACKGROUND

On August 5, 2010, MacKay was indicted in the United States District Court for the

District of Utah, on 129 counts related to the unlawful distribution of Schedule II and Schedule

III controlled substances. (Dkt. No. 1.) Among the counts, MacKay was charged with two

counts (Counts 1 and 2), which alleged that MacKay distributed a controlled substance

(oxycodone (“Percocet”), a Schedule II controlled substance, and hydrocodone (“Lortab”), a

Case 1:10-cr-00094-DB Document 377 Filed 05/07/14 Page 1 of 18Appellate Case: 14-4093 Document: 01019355231 Date Filed: 12/12/2014 Page: 2

2

Schedule III controlled substance, respectively), the use of which resulted in the death of Mr.

David Wirick.

The statute under which MacKay was charged for Counts 1 and 2 makes it unlawful “to

manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or

dispense, a controlled substance . . . .” 21 U.S.C. § 841(a) (1) (2013). Penalties for violations of

§ 841(a) include up to 20 years for the unlawful distribution of a Schedule II controlled

substance and up to 10 years for a Schedule III controlled substance. However, the penalty is

enhanced to a mandatory minimum sentence of 20 years for a Schedule II controlled substance,

and a maximum of 15 years for a Schedule III controlled substance, “if death or serious bodily

injury results from the use of such substance.” Id. at § 841(b)(1)(C) & (b)(1)(E)(i) (emphasis

added). The jury was asked to return a special verdict regarding Counts 1 and 2, answering

whether Mr. Wirick’s death resulted from the drugs prescribed by MacKay. When it came time

to instruct the jury, after consultation with the parties and with no request for any specific

instructions on the meaning of the statutory language, the Court did not provide any direction as

to the meaning of the phrase “results from.” (Dkt. No. 250, Jury Instruction No. 22.) The

following instruction was given to the jury:

To find Dr. Mackay guilty of the charges in counts 1 and 2 the

government must prove the following two essential elements beyond a reasonable

doubt:

First, that the defendant knowingly and intentionally distributed or

dispensed the controlled substances alleged in the indictment; and

Second, that the defendant knowingly and intentionally prescribed the

controlled substances outside the bounds of professional medical practice and not

for a legitimate medical purpose.

If you determine that the above two essential elements are satisfied as to

counts 1 and 2 you must then determine whether or not death resulted from the

use of the controlled substances dispensed and distributed by Dr. Mackay to

David Wirick.

“Death”, of course, means exactly that, that an individual has died. You

must determine from the evidence, beyond a reasonable doubt, whether or not


3

David Wirick died from using the controlled substances dispensed and distributed

by the defendant. The government also must prove that the death was a

reasonably foreseeable consequence of the defendant’s conduct. It is not

necessary, however, for the government to prove that David Wirick’s death was

the intended result of the defendant’s dispensing and distributing of the controlled

substances.

(Id.) (emphasis added).

This instruction was the only direction given to the jury regarding the law on this

subject. As can be seen, it refers to the controlled substances in plural and provides no

interpretation of the meaning of the phrase “whether or not death ‘resulted from’ the use

of the controlled substances” provided by MacKay.

On August 9, 2011, at the close of the government’s case-in-chief, MacKay

moved for a judgment of acquittal on all tried counts, pursuant to Rule 29(a) of the

Federal Rules of Criminal Procedure. (Dkt. No. 267.) The Court denied MacKay’s

motion. On August 16, 2011, after all the evidence had been presented, Dr. MacKay

renewed his Rule 29(a) motion with respect to only Counts 1 and 2. The Court reserved

judgment on the motion pursuant to Rule 29(b), and the case was submitted to the jury.

On August 18, 2011, MacKay was convicted on 40 counts, including Counts 1 and 2.

(Dkt. No. 245 at 1–2.) On December 13, 2011, the Court denied MacKay’s Motion for

Judgment of Acquittal on Counts 1 and 2. (Dkt. No. 271.)

On December 19, 2011, this Court sentenced MacKay to 240 months incarceration due to

the mandatory minimum penalty for his conviction on Count 1. Given the 20-year sentence on

Count 1, the Court stated that the sentence for the other counts would be less than 20 years and

would run concurrently to the sentence on Count 1. The Court did not specify a sentence for the

other counts even though nine of the counts had a maximum statutory term of imprisonment

below 240-months (Counts 2, 4-7, 15-17, and 108). (Dkt. Nos. 286, 287.) The Court also was


4

not requested and did not explain in any detail why it departed downward from the advisory

Guideline range in its sentence for Count 1. (Id.)

On January 4, 2012, MacKay filed a Notice of Appeal to the United States Court of

Appeals for the Tenth Circuit. (Dkt. No. 294.) One of the many grounds on which MacKay

based his appeal was that this Court committed error when it sentenced him to a general 240-

month sentence of imprisonment, rather than specifying individual sentences for each offense.

United States v. MacKay, 715 F.3d 807, 846 (10th Cir. 2013). Mackay also claimed on appeal

that there were insufficient facts to support the jury’s verdict on Counts 1 and 2. The

Government argued the evidence was sufficient. The evidence regarding the cause of death of

Mr. Wirick can be summarized as follows:

The Government introduced into evidence Mr. Wirick’s autopsy report,

prepared by Dr. Maureen Frikke, an assistant medical examiner. (Gov.’s Trial

Ex. 21 at 1–2.) Dr. Frikke’s report listed the cause of death as drug poisoning

due to a combination of hydrocodone and oxycodone, and pneumonia as a

complication of the drug poisoning. (Dkt. No. 370-1 at 1-2.) Dr. Frikke also

reported that the concentrations of each drug were “below the concentration

range that has been reported to cause death when it is the only drug present.”

(Id. at 2.) Dr. Frikke did not testify because she passed away prior to trial.

At trial, the Government called Dr. Todd Grey, Utah’s Chief Medical

Examiner, to testify. Dr. Grey opined that Mr. Wirick “died as a result of

combined effects of drug toxicities, specifically with oxycodone and diazepam

(Valium) as well as bronchopneumonia, or infection of the lungs.” (Dkt. No.

370-2 at 8-9.) Dr. Grey testified that the level of hydrocodone was “above

expected therapeutic and just below the lower limit of what is considered

potentially toxic” and that the level of oxycodone was in the “high therapeutic

range.” (Id. at 14-15.) Dr. Grey testified that without the drugs in Mr.

Wirick’s system, the pneumonia that was present in Mr. Wirick’s lungs was

“potentially lethal.” (Id. at 23.)

The Government also called Dr. Stacey Hail, a toxicologist, to testify. Dr.

Hail opined that Mr. Wirick’s death resulted from a combination of the drugs.

Dr. Hail testified, “The opinion is that the hydrocodone and oxycodone were

the drugs that resulted in his death. And I would also list out the Valium, the

diazepam, as contributing, as well as the Soma, which is listed on this report

as carisoprodol. That would add as well into the central nervous system


5

depression, but none of this would have occurred without the oxycodone and

hydrocodone.” (Dkt. No. 370-2 at 29.) Dr. Hail excluded pneumonia as an

immediate cause of death.

MacKay called Dr. Michael Baden, a forensic pathologist, to testify. Dr.

Baden testified that Mr. Wirick “died of a severe untreated undiagnosed

pneumonia.” (Dkt. No. 370-3 at 6.) Dr. Baden concluded that Mr. Wirick’s

“[p]neumonia was sufficient in and of itself to be lethal or fatal and caused his

death because of its extent to the lungs, and the drugs were not.” Id. at 7.)

On April 30, 2013, the Tenth Circuit remanded for resentencing because it was unclear

whether this Court intended to impose a 240-month sentence on each count, which would be

improper. United States v. MacKay, 715 F.3d 807, 846–47 (10th Cir. 2013). The Tenth Circuit

instructed this Court at resentencing “to explain why the sentence it imposes is sufficient, but not

greater than necessary to satisfy the sentencing objectives.” Id. at 846 n. 22. A resentencing

hearing was set for September 24, 2013. (Dkt. No. 358.)

On August 26, 2013, MacKay filed a Petition for a Writ of Certiorari in the United States

Supreme Court. On October 21, 2013, the Solicitor General filed a Response Memorandum to

MacKay’s Petition. In the Response, the Solicitor General stated:

On April 29, 2013, this Court granted certiorari in Burrage v. United States, No.

12-7515 (oral argument scheduled for Nov. 12, 2013) . . . . Because this Court’s

decision in Burrage may affect the proper resolution of this case, the petition for a

writ of certiorari should be held pending the Court’s resolution of Burrage, and

then disposed of as appropriate in light of the decision in that case.

Memorandum for the United States, No. 13-274, at 1-2.

On November 5, 2013, this Court granted MacKay’s unopposed Motion to Continue

Resentencing Hearing, in order to accommodate the outcome in Burrage, and to allow the

Supreme Court the opportunity to rule on MacKay’s Petition. (Dkt. No. 365).

On January 27, 2014, the Supreme Court issued its ruling in Burrage v. United States,

134 S.Ct. 881 (2014), holding “that, at least where the use of the drug distributed by the


6

defendant is not an independently sufficient cause of the victim’s death . . ., a defendant cannot

be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is

a but-for cause of the death . . . .” Burrage, 134 S.Ct. at 892 (emphasis added). The Supreme

Court denied certiorari on MacKay’s Petition on February 24, 2014. (Dkt. No. 367.)

ANALYSIS

I. Scope of the Resentencing

At the outset, the Court must decide the appropriate scope of resentencing. "[A]lthough

resentencing on remand is typically de novo, this does not hold true where an appellate court has

specifically limited a district court's discretion." United States v. Webb, 98 F.3d 585, 587 (10th

Cir. 1996), cert. denied, 137 L. Ed. 2d 229, 117 S. Ct. 1097 (1997). Under the mandate rule,

district courts are generally required to conform “with the articulated appellate remand." United

States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996).

However, this mandate rule "is a discretion-guiding rule subject to exception in the

interests of justice." Id. A district court may depart from an appellate court's mandate under

exceptional circumstances, including "(1) a dramatic change in controlling legal authority; (2)

significant new evidence that was not earlier obtainable through due diligence but has since

come to light; or (3) [if] blatant error from the prior sentencing decision would result in serious

injustice if uncorrected." Id.

The Government argues that the Court’s role in resentencing MacKay is limited to two

specific sentencing issues: first, clarification of this Court’s intent regarding the sentence

imposed for counts other than Count 1; and, second, an explanation of this Court’s reasons for

varying below the advisory Guideline range in its sentence for Count 1.


7

MacKay argues that the Tenth Circuit remanded for de novo resentencing, and in the

alternative, that even if the mandate is limited as the Government suggests, that pursuant to

Tenth Circuit precedent, Burrage is a sufficient change in controlling legal authority to allow this

Court to exceed the mandate. In order to make such a decision, the Court must first examine the

Burrage case.

In Burrage, Marcus Burrage was charged with violating § 841(a)(1) for distributing

heroin to Joshua Banka and was subject to the enhanced penalty because the Government alleged

that Banka’s death “resulted from” the use of the heroin. Burrage, 134 S.Ct. at 885. Two

medical experts testified at trial regarding the cause of Banka’s death. Id. The first testified that

multiple drugs were present at the time of death and that the heroin was the only drug above the

therapeutic range, but he “could not say whether Banka would have lived had he not taken the

heroin.” Id.

He concluded that the heroin interacted with the other drugs to cause “respiratory and/or

central nervous system depression” and was thus a “contributing factor” to the overall effect that

caused death. Id. The second expert also testified that the heroin played a “contributing role,”

but he also could not say whether Banka would have lived had he not taken the heroin. Id. at

886. The jury was instructed that the Government only had to prove that the heroin was a

“contributing cause” of death. Id. Burrage was convicted and received the enhanced penalty.

Id.

The Court of Appeals for the Eighth Circuit affirmed Burrage’s conviction on the basis

that the “contributing-cause” standard was consistent with its prior precedent. Id. The Supreme

Court granted certiorari to determine whether a defendant may be convicted under the “results

from” provision if the controlled substance was only a contributing cause of the death. Id.


8

The Supreme Court first held that the enhancement is an element of the offense, which

must be found beyond a reasonable doubt. Id. at 887 (citing Alleyne v. United States, 133 S.Ct.

2151, 2162–63 (2013)). Therefore, there were two elements of Burrage’s crime: “(i) knowing or

intentional distribution of heroin, § 841(a)(1); and (ii) death caused by (‘resulting from’) the use

of that drug, § 841(b)(1)(C).” Id. There was no dispute that Burrage had violated the first

element. Id. at 887 n.3. The question was whether Banka’s death “resulted from” Burrage’s

distribution; in other words, “whether the use of heroin was the actual cause of Banka’s death in

the sense that § 841(b)(1)(C) requires.” Id. at 887.

The Supreme Court rejected the Eighth Circuit’s contributing cause standard by stating:

“The language Congress enacted requires death to ‘result from’ use of the unlawfully distributed

drug, not from a combination of factors to which drug use merely contributed.” Id. at 891

(emphasis added). Instead, the Court held: “at least where use of the drug distributed by the

defendant is not an independently sufficient cause of the victim’s death or serious bodily injury,

a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. §

841(b)(1)(C) unless such use is a but-for cause of the death.” Id. at 892 (emphasis added).

In this case, the foundation of MacKay’s sentence on Counts 1 and 2 depends on the

proper interpretation of the penalty enhancement provision of § 841 – specifically whether Mr.

Wirick’s death “resulted from” the drugs prescribed by MacKay. The Supreme Court’s

interpretation of that phrase in Burrage is the precise type of “dramatic change in controlling

legal authority” contemplated in Moore. Therefore, in accordance with the law of this Circuit

and consistent with the mandate of the Tenth Circuit, the Court will impose and explain a

sentence that is sufficient, but not greater than necessary for the sentencing purposes, in light of

Burrage.


9

II. Effect of Burrage on this Case

Having found Burrage to be a sufficient change in controlling legal authority and that

justice requires that Burrage is applicable here, the Court must now decide what effect, if any,

Burrage has on MacKay’s resentencing. At the close of MacKay’s trial, the Court instructed the

jury that it must decide on Counts 1 and 2 whether Mr. Wirick’s death “resulted from” the use of

the drugs prescribed by MacKay. The jury was not given any further direction as to what

“resulted from” meant.

The Government argues that this Court’s denial of MacKay’s Rule 29 Motion, and the

Tenth Circuit’s declaration on appeal that “a reasonable jury could conclude beyond a reasonable

doubt that the oxycodone by itself and the hydrocodone by itself resulted in Wirick’s death,”

United States v. MacKay, 715 F.3d 807, 830 (10th Cir. 2013), constitute the law of the case and

are beyond reconsideration at resentencing.

The law of the case "doctrine posits that when a court decides upon a rule of law, that

decision should continue to govern the same issues in subsequent stages in the same case.”

Arizona v. California, 460 U.S. 605, 618, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983). The

doctrine has particular relevance following a remand order issued by an appellate court. "When

a case is appealed and remanded, the decision of the appellate court establishes the law of the

case and ordinarily will be followed by both the trial court on remand and the appellate court in

any subsequent appeal." Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995).

However, as with the mandate rule, three "exceptionally narrow" grounds justify

departing from the law of the case doctrine: "(1) when the evidence in a subsequent trial is

substantially different; (2) when controlling authority has subsequently made a contrary decision


10

of the law applicable to such issues; or (3) when the decision was clearly erroneous and would

work a manifest injustice." McIlravy v Kerr-McGee Coal Corp., 204 F.3d at 1035.

The Court finds exceptions 2 and 3 to both be applicable here. Neither this Court nor the

Tenth Circuit had the benefit of Burrage, which has made a contrary decision of the law

applicable. In making such a finding, the Court need only look to the evidence regarding Counts

1 and 2 presented at trial. Dr. Frikke’s autopsy report stated that each of the drugs present was

below the concentration range reported to cause death when it is the only drug present. Drs.

Grey and Hail opined that Mr. Wirick’s death resulted from a combination of drug toxicities, and

Dr. Baden blamed pneumonia as the sole cause of Mr. Wirick’s death. Not one of the four

medical experts testified that either the oxycodone or hydrocodone, acting alone, was a but-for

cause of Mr. Wirick’s death. Had this Court had the advantage of knowing Burrage at the close

of MacKay’s trial, it certainly would have instructed the jury differently, and just as clearly

would have granted MacKay’s Motion for Judgment of Acquittal on Counts 1 and 2 inasmuch as

not only was the instruction insufficient, but so too was the evidence.

The Government also argues that Burrage has no effect because this Court did not give a

“contributing factor” instruction like the district court in Burrage. Further, the Government

contends the Supreme Court’s declaration that but-for causation is the plain meaning of “results

from,” means it is safe to assume that the jury in this case must have arrived at the same

definition. MacKay in turn argues that Burrage demands a different result because the jury was

not given specific instructions on Counts 1 and 2 that “resulting from” requires “but-for”

causation.

The Court agrees with MacKay. In effect the Government asks the Court to find the

statutory interpretation skills of the common layperson juror equal to those of Justice Scalia. The


11

Court is unable to make such a finding when this Court, the district court in Burrage, and the

Eighth Circuit, all failed to correctly deduce the plain meaning of “resulting from.” Whether

MacKay must face a 240-month mandatory minimum sentence of incarceration and be held

criminally liable for the death of another person depends on the interpretation of “resulting

from.” In such a situation, the Court has a duty to make sure the jurors got it right. Simply

providing the jurors with the “resulting from” language, without more, is not acceptable in light

of Burrage. Accordingly, the Court hereby vacates MacKay’s enhanced penalty convictions on

Counts 1 and 2.

III. MacKay’s New Sentence

In post-Booker sentencing, the Court is obligated to engage in a three-step analysis: first,

the Court must correctly determine the advisory Guideline range; second, it must determine

whether any Guideline departures are warranted; and third, it must determine if a non-Guideline

sentence is reasonable under the factors of 18 U.S.C. § 3553(a). Finally, the Court must

adequately explain its sentencing choice. Gall v. United States, 552 U.S. 38, 50 (2007) (citing

Rita v. United States, 551 U.S. 338 (2007). Having found that the enhanced penalties of Counts

1 and 2 are not applicable, the Court must now calculate a Guidelines sentence based on the

remaining offenses.

A. MacKay’s Sentence under the Sentencing Guidelines

Counts 1, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 21 22, 23, 24, 25, 26, 32, 33, 34, 35, 41, 42,

81, 82, 83, 84, 120, 121, 123, 124, Distribution of a Schedule II Controlled Substance (21 U.S.C.

§§ 841(a)(l) and 21 U.S.C. § 841(b)(1)(C)), are punishable by imprisonment up to 20 years.

Counts 2, 4, 5, 6, 7, and 108, Distribution of a Schedule III Controlled Substance (21 U.S.C. §

841(a)(1) and 21 U.S.C.§ 841(b)(1)(E)) are punishable by imprisonment up to 10 years. The


12

Guideline calculation for these counts is determined by the quantity of drugs involved in the

offense, adjusted for other relevant Guideline factors, and capped by any statutory maximum

sentence.

The amount of oxycodone, hydrocodone and methadone that MacKay prescribed in the

counts of conviction (based on the prescriptions admitted as Government [Trial] Exhibit 19)

produces the following result when applied to the Drug Quantity Table in the United States

Sentencing Guidelines (§ 2D1.1):

Total oxycodone: 72,975 mg

1 g. oxycodone = 6700 g. marijuana

72,975 mg oxycodone = 488.93 kg marijuana

Total hydrocodone: 10,200 mg

1 g. hydrocodone = 500 g. marijuana

10,200 mg hydrocodone = 5.10 kg marijuana

Total methadone: 3,900 mg

1 g. methadone = 500 g. marijuana

3,900 mg methadone = 1.95 kg marijuana

Total: 495.98 kg marijuana = Base Offense Level 28.

The original PSR added two levels for abuse of a position of trust/use of special skill

pursuant to U.S.S.G. § 3B1.3, which results in an adjusted Offense Level of 30. MacKay has no

prior juvenile or adult criminal history. A criminal history score of 0 results in a Criminal

History Category of I. The resulting advisory Guideline range is 97-121 months.

B. Whether a non-Guideline sentence is reasonable under the factors of

18 U.S.C. § 3553(a)

As can be readily ascertained from the calculation performed in the preceding section, the

Guideline offense level of 28 is based almost entirely on the quantity of the controlled substances

involved. Given the nature and circumstances of the offense and the history and characteristics

of the defendant, the Court finds such an approach to be too broad and rigid to provide an


13

effective method of determining the appropriate sentence in this case.

The Court finds the Guideline range of 97-121 months incarceration to be greater than

necessary to meet the sentencing purposes set forth in 18 U.S.C. § 3553(a)(2). A quantity based

system may work as a general matter for street dealers (although, even there, the Sentencing

Commission is currently attempting to adjust the quantity-dependent drug sentencing guidelines

after receiving much public and judicial scrutiny of the importance placed on quantity alone1) but

it is too blunt an instrument for a case like this one. The unique facts and circumstances of this

case, with which the Court became intimately acquainted during the relatively lengthy trial of

this case, will be better suited for sentencing purposes by directly addressing the factors set forth

in 18 U.S.C. § 3553.

i. 18 U.S.C. § 3553(a)(1)

Pursuant to § 3553(a)(1), our sentencing analysis begins with an examination of “the

nature and circumstances of the offense and the history and characteristics of the defendant.”

The offenses for which MacKay was convicted were of one kind: the illegal distribution of

controlled substances to his patients. The Government’s case focused on nine people, each of

whom at some point became overly dependent on opioid medicines prescribed by MacKay. By

its very nature, the case presented the jury with the difficult task of first deciding if MacKay’s

1 “Many factors support adoption of this modest amendment. When the drug

quantity tables were set at their current level, above the mandatory minimum penalties,

drug quantity was the primary driver of drug sentences. There was only one other

specific offense characteristic in the drug guideline. Now, there are sixteen specific

offense characteristics, including enhancements for violence, firearms, aggravating role,

and a whole host of other factors to help ensure that dangerous offenders receive long

sentences. Quantity, while still an important proxy for seriousness, no longer needs to be

quite as central to the calculation.”

Chief Judge Patti B. Saris, Chair, United States Sentencing Commission, Remarks for Public

Meeting at 1-2 (April 10, 2014), available at http://www.ussc.gov/sites/default/files/pdf/

amendment-process/public-hearings-and-meetings/20140410/Chairs-Remarks.pdf .


14

prescriptions left the legal terrain of medically-helpful pain management. Then, if the jurors

were persuaded that there was such a departure, they faced the perhaps even more difficult task

of deciding whether such behavior constituted a kind of medical malpractice, which, although

negligent, is not criminal, or whether the doctor had knowingly and intentionally left the field of

medicine altogether to become a criminal drug dealer. The boundaries between the mental states

that support each of these zones of human behavior are, to be sure, not always easy to

distinguish. In the end, the jury found sufficient proof to convict on 40 counts and acquitted on

44 others, often distinguishing between prescriptions to the same patient, which serves to

exemplify the conscientiousness of the jury’s deliberations and the difficulty of their task. This

was not an easy case. It was a close one. There was no direct proof of the inner workings and

motivations of MacKay’s mind, no extrinsic admissions of a guilty mindset or other

unmistakable proof of a medical doctor deciding to become a criminal. But there was significant

circumstantial evidence against MacKay. There was evidence that showed him to be inattentive

to the conditions of his patients to the point that criminal culpability could rationally be found, as

it was. But it is also true that every one of the nine patients in question suffered from legitimate

pain and, to varying degrees, lied to their doctor. MacKay, as a criminal defendant, is certainly

unique and enigmatic. On the one hand he was presented as a respected medical doctor in the

small community of Brigham City, Utah, with many admirers who vigorously attest to his good

character. But it is equally true that he had, and has, his detractors and accusers.

To say the least, the nature and circumstances of MacKay’s offenses and his history and

characteristics are both troubling and complicated. To the extent the Government attempts to

depict MacKay as a despicable type of criminal, the Court disagrees. He has no prior criminal

history of any kind and his good works are many and cannot be overlooked. Furthermore,


15

recognizing that the sentence imposed on MacKay must be just, the Court does not entirely

disregard the considerable negative impacts this case has already had on him and his family. He

has already lost standing in his community, faced the humiliation of a public trial, lost his job,

spent a great deal of money on his defense, and otherwise experienced major financial set backs,

and has no doubt suffered many emotional pains and negative health consequences that

accompany such a process. While it can be rightly said that in many respects he brought these

problems on himself, they cannot be completely forgotten when attempting to fashion a just

sentence.

ii. 18 U.S.C. § 3553(a)(2)

Against this backdrop, the Court turns its attention to § 3553(a)(2), which requires the

Court, “in determining the particular sentence to be imposed,” to “consider . . . the need for the

sentence,

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

and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

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

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

medical care, or other correctional treatment in the most effective

manner."

Id.

The Court will examine each of these purposes in turn.

1. (A) To Reflect the Seriousness of the Offense

There can be no question that the subject offense is serious. The Court takes judicial

notice of the fact that the abuse and misuse of prescription pain medication is a serious national

problem. And the danger posed by the misuse of opioid medications is clearly exacerbated by


16

unscrupulous doctors and other medical professionals who improperly distribute, or aid and abet

their distribution, without any legitimate medical justification. An appropriate sentence must not

lose focus of the need to vigorously enforce the laws that prohibit the misuse of these potentially

dangerous drugs.

2. (B) To Afford Adequate Deterrence to Criminal Conduct

Because of the publicity this case received and the perception it has no doubt left on the

minds of many people, this case requires a prison sentence. Even though the Court sees no real

threat of recidivism from the defendant himself (see (C) below), it is important for the public at

large, and the medical community, in particular, to be reminded of the serious consequences that

will result when a medical doctor ceases being a medical doctor and becomes a drug dealer. The

deterrent effect on others is the most important reason why a significant period of incarceration

is necessary here.

3. (C) To Protect the Public

MacKay appears to the Court to present no serious threat of recidivism. He has no

criminal history. His medical license has been revoked which eliminates his ability to prescribe

controlled substances in the future. He is 66 years old and his health is poor. As pointed out

above, MacKay has suffered many serious consequences as a result of his criminal convictions.

Given his exemplary behavior in prison and his family, church and community associations, the

Court finds little or no reason to believe Mackay will engage in criminal behavior in the future.

4. (D) To Provide the Defendant with Training, Care and/or

Treatment

At present, MacKay has been incarcerated for approximately two years. During that time

he has been a model inmate. He has completed over 22 vocational, career, and academic courses

for nearly 1,000 hours of education. He has worked as a GED tutor and educational department


17

clerk to assist other inmates to obtain their GED, improve literacy, and prepare them for a return

to society. He has obtained and maintained full-time employment while incarcerated. He gets

along with the staff and other inmates. He uses his leisure time to exercise daily, to read, to take

classes, and to participate in weekly church services by playing the piano, teaching lessons, and

singing in the choir. (Def.’s Resentencing Mem. at 23.)

Furthermore, MacKay’s present health situation is not good. He suffers from diabetes,

coronary artery disease, hypertension, high cholesterol, obesity, gout and cirrhosis of the liver.

He was diagnosed with thyroid cancer and had his thyroid removed. He has had cardiac bypass

surgery, wrist surgery for carpel tunnel syndrome, prostate surgery, gastric bypass surgery,

surgery to insert a heart stent, and surgery to repair diabetic ulcers. Since his incarceration,

MacKay has suffered additional health problems including a retinal hemorrhage requiring

emergency eye surgery and an infected diabetic ulcer, which could lead to amputation of part of

his foot. On account of his many health problems, MacKay must take several medications on a

daily basis and is insulin dependent. (Def.’s Resentencing Mem. at 22.) He claims the medical

care he receives in prison is far below the care he needs.

CONCLUSION

Taking into consideration all of the many facts and circumstances of this case and

the history and characteristics of the defendant, the Court finds that a 36-month period of

incarceration will be sufficient but not greater than necessary to comply with the purposes

discussed above. Accordingly, it is the judgment of the Court that the defendant, Dewey C.

MacKay, III, is placed in the custody of the United States Bureau of Prisons for a period of 36

months, with no period of supervision to follow.

Consistent with the Court’s earlier sentence imposed on MacKay, his special assessment


18

fee will remain at $4,000.00. An Amended Judgment reflecting this sentence will be entered

forthwith.

IT IS SO ORDERED.

DATED this 7th day of May 2014.

___________________________________

Dee Benson

United States District Judge


ATTACHMENT B

United States v. MacKay, 715 F.3d. 807 (10th Cir. 2013)

Opinion


807U.S. v. MACKAYCite as 715 F.3d 807 (10th Cir. 2013)

from the Maoists. However, this argu-ment essentially transforms the willfulblindness standard into an actual knowl-edge requirement. Petitioner presentedevidence that the government is aware ofand does not prevent the Maoists’ frequentacts of torture. Petitioner does not needto present evidence that the governmentknows of the specific threat against him inorder to show that the government wouldlikely turn a blind eye to his torture if hereturned to Nepal. See Zheng v. Ashcroft,332 F.3d 1186, 1196 (9th Cir.2003) (‘‘Thecorrect inquiry as intended by the Senateis whether a respondent can show thatpublic officials demonstrate ‘willful blind-ness’ to the torture of their citizens bythird parties, or as stated by the FifthCircuit, whether public officials ‘wouldturn a blind eye to torture.’ ’’ (quotingOntunez–Tursios v. Ashcroft, 303 F.3d341, 355 (5th Cir.2002))). The case thegovernment cites for support, Cruz–Funezv. Gonzales, 406 F.3d 1187 (10th Cir.2005),is distinguishable. There, the petitionersfaced a threat from a particular individual,and there was no evidence that public offi-cials were aware of or had acquiesced inany previous acts of torture by this indi-vidual or his employees. See id. at 1192.Under those circumstances, the fact thatthe petitioners had not informed the gov-ernment of the individual’s threats againstthem prevented the conclusion that thegovernment would acquiesce in whateveractions the individual took against them.Id. Here, on the other hand, Petitioner’sevidence that the government regularlyfails to take action to prevent or punishMaoist acts of torture makes this a verydifferent case.

The record as a whole simply does notsupport the BIA’s conclusion that Petition-er failed to show that public officials inNepal would likely acquiesce in his tortureby the Maoists if he returns to Nepal. Weaccordingly grant the petition for review

as to Petitioner’s CAT claim as well.However, we note that there has been noagency factfinding on the likelihood thatPetitioner will be tortured if he returns toNepal, and on remand the agency mayconsider whether Petitioner has shown asufficient likelihood of torture to be enti-tled to CAT relief.

III. CONCLUSION

For the foregoing reasons, we GRANTthe petition for review, VACATE theBIA’s affirmance of the immigrationjudge’s order, and REMAND for furtherproceedings in accordance with this opin-ion.

,

UNITED STATES of America,Plaintiff–Appellee,

v.

Dewey C. MacKAY, III, Defendant–Appellant.

No. 12–4001.

United States Court of Appeals,Tenth Circuit.

April 30, 2013.

Background: Defendant was convicted inthe United States District Court for theDistrict of Utah of unlawfully prescribingcontrolled substances, and he appealed.

Holdings: The Court of Appeals, Baldock,Circuit Judge, held that:

(1) there was sufficient evidence to sup-port physician’s convictions;

(2) statute prohibiting prescription of con-trolled substances without legitimate


808 715 FEDERAL REPORTER, 3d SERIES

medical basis was not void for vague-ness;

(3) here was sufficient evidence that de-fendant stepped outside his role asphysician when he prescribed narcot-ics;

(4) there was sufficient evidence that oxy-codone and hydrocodone that defen-dant prescribed caused patient’s death;

(5) admission of autopsy report withouttestimony of medical examiner whohad performed autopsy was not plainerror;

(6) decision to qualify board certified toxi-cologist as expert was not plain error;and

(7) limited remand was necessary to allowdistrict court to clarify sentence forrecord.

Affirmed in part and remanded for resen-tencing.

1. Criminal Law O561(1)

No person shall be made to sufferonus of criminal conviction except uponevidence necessary to convince trier of factbeyond reasonable doubt of existence ofevery element of offense.

2. Criminal Law O1144.13(3, 5)

In assessing sufficiency of evidence tosupport criminal conviction, Court of Ap-peals reviews evidence, both direct andcircumstantial, in light most favorable togovernment.

3. Criminal Law O552(3), 562

To support criminal conviction, evi-dence, together with reasonable inferencesto be drawn therefrom, must be substan-tial, but it need not conclusively excludeevery other reasonable hypothesis and itneed not negate all possibilities exceptguilt.

4. Criminal Law O1159.3(1)Fact that prosecution and defense wit-

nesses presented conflicting or differingaccounts at trial does not necessarily ren-der evidence supporting criminal convic-tion insufficient.

5. Controlled Substances O82There was sufficient evidence to sup-

port physician’s convictions for unlawfullyprescribing controlled substances, despitedefendant’s contention that government’sexpert witness’s testimony was only hissubjective opinion of defendant’s chartingpractices, where expert testified that nolegitimate medical basis existed to pre-scribe medications in quantity and overtime span defendant prescribed to eachpatient named in indictment, defendant’scharts revealed such activities as early re-fills on prescriptions, lack of depth in ex-aminations, and instances where defendantrecorded diagnosis without relaying thatinformation to patient, and patients con-firmed expert’s testimony, and defendant’sfront desk receptionist testified that defen-dant signed prescriptions without seeingpatients on occasion. ComprehensiveDrug Abuse Prevention and Control Act of1970, §§ 102(21), 302(b), 401(a)(1), 21U.S.C.A. §§ 802(21), 822(b), 841(a)(1); 21C.F.R. § 1306.04(a).

6. Constitutional Law O4506Elemental to concept of due process is

assurance that criminal laws must giveperson of ordinary intelligence fair noticethat his contemplated conduct is forbiddenby statute, and those that fail this test aretreated as no laws at all, but are void forvagueness. U.S.C.A. Const.Amend. 5.

7. Constitutional Law O4509(9) Controlled Substances O6

Controlled Substances Act’s prohibi-tion against prescribing controlled sub-stances without legitimate medical basiswas not void for vagueness as applied to



licensed physician, where defendant hadseveral years of experience as doctor, de-fendant testified that doctor had responsi-bility to evaluate whether patient was ad-versely affected by prescriptions and tomake sure his patients were complyingwith medication agreements, that he didnot look at certain controlled substancedatabase reports, and that he often did notquestion his patients’ excuses for earlyrefills because he trusted them, even whenlooking to the controlled substance data-base would have shown those patientsfilled original prescription, and patient tes-timony revealed defendant did not conductfollow-up examinations before writing pre-scriptions for refills. ComprehensiveDrug Abuse Prevention and Control Act of1970, §§ 102(21), 302(b), 401(a)(1), 21U.S.C.A. §§ 802(21), 822(b), 841(a)(1).

8. Constitutional Law O4527(1)Although Due Process Clause bars

courts from applying novel construction ofcriminal statute to conduct that neitherstatute nor any prior judicial decision hasfairly disclosed to be within its scope, itdoes not bar government from filingcharges against defendant if his conduct iswithin statute’s scope, even when govern-ment has never filed such charges in past.U.S.C.A. Const.Amend. 5.

9. Homicide O1165There was sufficient evidence that

defendant stepped outside his role asphysician when he prescribed narcotics topatient to support his conviction for un-lawfully prescribing controlled substancesresulting in death, despite conflicting evi-dence as to whether defendant prescribedto patient outside usual course of medicalpractice and not for legitimate medicalpurpose, in light of evidence that defen-dant generally failed to take adequatemedical histories and conduct physical ex-ams, that patient’s regular physician hadspoken to defendant about patient’s

agreement that he would his only doctor,that defendant was aware that patienthad previously overdosed on methadoneonly two days after he prescribed metha-done, that defendant saw 92 patients in6.5 hours on day he prescribed oxycodoneand hydrocodone, and that quantity ofdrugs defendant provided patient was in-appropriate and more than necessary totreat his pain until he could see his regu-lar physician. Comprehensive DrugAbuse Prevention and Control Act of1970, §§ 102(21), 302(b), 401(a)(1), (b), 21U.S.C.A. §§ 802(21), 822(b), 841(a)(1), (b);21 C.F.R. § 1306.04(a).

10. Homicide O1174

There was sufficient evidence that ox-ycodone and hydrocodone that defendantprescribed caused patient’s death to sup-port his conviction for unlawfully prescrib-ing controlled substances resulting indeath, even though chief medical examinertestified that patient died as result ofcombined effects of drug toxicities, specifi-cally with oxycodone and diazepam as wellas bronchopneumonia, where board certi-fied toxicologist testified that hydrocodoneand oxycodone were drugs that resulted inpatient’s death and that drug poisoningoccurred before patient developed pneu-monia. Comprehensive Drug Abuse Pre-vention and Control Act of 1970,§§ 102(21), 302(b), 401(a)(1), (b), 21U.S.C.A. §§ 802(21), 822(b), 841(a)(1), (b);21 C.F.R. § 1306.04(a).


District court’s admission of autopsyreport without testimony of medical exam-iner who had performed autopsy was notplain error in prosecution for unlawfullyprescribing controlled substances, despitepossible Confrontation Clause violation,where, without admission of autopsy re-port, jury still had sufficient evidence tofind defendant guilty. U.S.C.A. Const.



Amend. 6; Comprehensive Drug AbusePrevention and Control Act of 1970,§ 401(b), 21 U.S.C.A. § 841(b).

12. Homicide O1174There was sufficient evidence that pa-

tient’s death from overdose of oxycodoneand hydrocodone that defendant pre-scribed was reasonably foreseeable to sup-port defendant’s conviction for unlawfullyprescribing controlled substances resultingin death, where defendant’s chart con-tained notes from patient’s regular physi-cian indicating that patient’s wife statedthat patient would take his medication ininconsistent manner, often binging to pointof falling off toilet, patient had attemptedto obtain early refill from another doctorin his regular physician’s office, but thatdoctor refused, defendant was aware thatpatient had overdosed on methadone fourmonths earlier, defendant saw patient eventhough he was on defendant’s do-not-seelist, and defendant wrote thirty-day pre-scription without contacting regular physi-cian’s office, even though he knew thatregular physician was only going to begone for three days. ComprehensiveDrug Abuse Prevention and Control Act of1970, § 401(b), 21 U.S.C.A. § 841(b).

13. Criminal Law O1137(3)Defendant charged with unlawfully

prescribing controlled substances resultingin death forfeited claim that district courtdid not fully inform jury of law regardingproximate cause, where district court, onmultiple occasions, requested assistance indrafting jury instruction at issue, and de-fendant failed to object to instruction.

14. Criminal Law O486(1)Before admitting expert testimony,

district court must adequately demon-strate by specific findings on record that ithas performed its duty as gatekeeperwhen faced with party’s objection. Fed.Rules Evid.Rule 702, 28 U.S.C.A.

15. Criminal Law O1036.6, 1139

Although Court of Appeals usually re-views de novo whether district court ap-plied proper standard in admitting experttestimony, where party fails entirely toobject to expert testimony at or beforetrial, review is only for plain error. Fed.Rules Evid.Rule 702, 28 U.S.C.A.

16. Criminal Law O1036.6

District court’s decision to qualifyboard certified toxicologist as expert andallow jury to consider her testimony inprosecution for unlawfully prescribing con-trolled substances resulting in death didnot rise to plain error, where defendantdid not challenge district court’s decisionto allow witness to give expert testimony,but rather argued that pathologist, insteadof toxicologist, would be appropriate per-son to provide testimony as to cause ofdeath, and nothing in record indicated wit-ness lacked necessary training and experi-ence to provide testimony on relationshipbetween drugs or poisons and patient’sdeath. Fed.Rules Evid.Rule 702, 28U.S.C.A.

17. Criminal Law O1036.6

District court’s decision to allow toxi-cologist to state that patient’s ‘‘death re-sulted from’’ or, in other words, patient’s‘‘cause of death’’ was because of, controlledsubstances was not plain error in prosecu-tion for unlawfully prescribing controlledsubstances resulting in death, where wit-ness did not tell jury that defendant wasguilty, but instead explained her observa-tion based on evidence in case. Fed.RulesEvid.Rule 704(a), 28 U.S.C.A.


In determining whether potentiallyprejudicial evidence is properly admitted,court must consider (1) whether evidencewas relevant, (2) whether it had potentialto unfairly prejudice defendant, and (3)



whether its probative value was substan-tially outweighed by danger of unfair prej-udice. Fed.Rules Evid.Rule 403, 28U.S.C.A.

19. Criminal Law O2183Party who raises subject in opening

statement opens door to admission of evi-dence on that same subject by opposingparty.

20. Criminal Law O338(7)Evidence is ‘‘unfairly prejudicial’’ if it

makes conviction more likely because itprovokes emotional response in jury orotherwise tends to affect adversely jury’sattitude toward defendant wholly apartfrom its judgment as to his guilt or inno-cence of crime charged. Fed.Rules Evid.Rule 403, 28 U.S.C.A.

See publication Words and Phras-es for other judicial constructionsand definitions.

21. Criminal Law O338(7)In determining whether to admit po-

tentially prejudicial evidence, it is notenough that risk of unfair prejudice begreater than probative value of evidence;danger of that prejudice must substantiallyoutweigh evidence’s probative value. Fed.Rules Evid.Rule 403, 28 U.S.C.A.

22. Controlled Substances O69 Criminal Law O2183

District court did not abuse its discre-tion in prosecution for unlawfully prescrib-ing controlled substances in admitting ex-hibit showing annual rankings of state’stop ten issuers of hydrocodone and oxyco-done prescriptions during years in ques-tion, despite possibility that jury couldhave been confused by exhibit and believedthat because defendant was number oneprovider of hydrocodone in state, he musthave been prescribing hydrocodone not forlegitimate medical purpose to indictmentpatients, where charts were relevant to

issue of whether defendant stepped outsidehis role as doctor and became criminaldrug pusher, and exhibit was fair responseto defendant’s assertion in his openingstatement that he shifted from orthopedicsurgery to pain management because hedid not want folks in his community totravel to receive treatment for chronicpain. Fed.Rules Evid.Rule 403, 28U.S.C.A.

23. Criminal Law O1169.1(1), 1170(1)

District court’s decision whether toadmit or exclude evidence, is consideredharmless unless party’s substantial right isaffected.

24. Controlled Substances O100(2)

Sentencing and Punishment O1490

Defendant’s 20-year sentence for un-lawfully prescribing controlled substanceswas not excessive, and thus did not violateEighth Amendment’s prohibition on crueland unusual punishment, where govern-ment prosecuted defendant for steppingout of his role as doctor, becoming criminaldrug dealer, and prescribing controlledsubstance that resulted in patient’s death,and defendant’s sentence was at statutoryminimum, and below advisory Guidelinerange. U.S.C.A. Const.Amend. 8; Com-prehensive Drug Abuse Prevention andControl Act of 1970, § 401(b)(1)(C),(b)(1)(E)(i), 21 U.S.C.A. § 841(b)(1)(C),(b)(1)(E)(i).

25. Constitutional Law O4702

Controlled Substances O6

Disparate scheduling under Con-trolled Substance Act between hydroco-done mixtures and oxycodone mixtures,pursuant to which conviction for unlawfullyprescribing oxycodone mixture, a ScheduleII drug, mandated mandatory minimumsentence of 20 years, but unlawfully pre-scribing hydrocodone mixture, a ScheduleIII drug, carried no mandatory minimum



sentence, but instead had maximum sen-tence of 15 years, did not violate due pro-cess as applied to defendant convicted ofunlawfully prescribing hydrocodone andoxycodone mixtures, despite defendant’scontention that hydrocodone and oxyco-done were substantially similar drugs,used for same purposes, and caused simi-lar effects. U.S.C.A. Const.Amend. 5;Comprehensive Drug Abuse Preventionand Control Act of 1970, §§ 201(a),401(b)(1)(C), (b)(1)(E)(i), 21 U.S.C.A.§§ 811(a), 841(b)(1)(C), (b)(1)(E)(i).

26. Sentencing and Punishment O34

District court imposes illegal sentencewhen it sentences defendant to term ofincarceration that exceeds statutory maxi-mum.

27. Criminal Law O1181.5(8)

Sentencing and Punishment O1060

Limited remand was necessary inprosecution for multiple counts of unlaw-fully prescribing controlled substances toallow district court to clarify sentence forrecord, where court sentenced defendantto general 240–month sentence of impris-onment, rather than specifying individualsentences for each offense, and several ofdefendant’s counts of conviction had maxi-mum statutory term of imprisonment be-low 240 month statutory minimum term ofimprisonment for another count. U.S.S.G.§ 5G1.2, 18 U.S.C.A.

Peter Stirba (Nathan A. Crane andKathleen Abke with him on the brief),Stirba & Associates, Salt Lake City, UT,for Appellant.

Elizabethanne C. Stevens, AssistantUnited States Attorney (David Barlow,United States Attorney, with her on thebrief), Office of the United States Attor-ney, Salt Lake City, UT, for Appellee.

Before KELLY and BALDOCK, CircuitJudges, and JOHNSON, District Judge.*

BALDOCK, Circuit Judge.

[1–3] The bedrock principle that ‘‘noperson shall be made to suffer the onus ofa criminal conviction except upon TTT evi-dence necessary to convince a trier of factbeyond a reasonable doubt of the existenceof every element of the offense’’ is well-settled in our criminal jurisprudence.Jackson v. Virginia, 443 U.S. 307, 316, 99S.Ct. 2781, 61 L.Ed.2d 560 (1979). Wefrequently hear appeals from defendantschallenging the sufficiency of the evidence,but all too often, defendants misunder-stand the standard under which we reviewtheir appeal. In application, we review theevidence, both direct and circumstantial, ina light most favorable to the Government.United States v. Kieffer, 681 F.3d 1143,1152 (10th Cir.2012). The evidence neednot ‘‘convince a trier of fact beyond alldoubt,’’ rather, the evidence ‘‘need onlyreasonably support the jury’s finding thatthe defendant is guilty of the offense be-yond a reasonable doubt.’’ Id. Impor-tantly, we have repeatedly emphasizedthat the evidence, ‘‘together with the rea-sonable inferences to be drawn therefrom,must be substantial, but it need not conclu-sively exclude every other reasonable hy-pothesis and it need not negate all possibil-ities except guilt.’’ Id. (internal quotationmarks omitted). In the present appeal,Defendant Dewey C. MacKay, III, whom ajury convicted of unlawfully prescribingcontrolled substances, challenges the suffi-

* The Honorable William P. Johnson, UnitedStates District Court Judge, District of New

Mexico, sitting by designation.



ciency of the evidence underlying severalcounts of his conviction. He also chal-lenges certain jury instructions, admissionof an exhibit and expert testimony, and thelegality of his sentence. Our jurisdictionarises under 28 U.S.C. § 1291 and 18U.S.C. § 3742. For reasons to follow, weaffirm the district court’s judgment of con-viction, but remand for resentencing.

I.

Defendant Dewey C. MacKay practicedmedicine in Brigham City Utah. Prior to2001, Defendant focused his practice onorthopedics. Trial Tr., 73, July 20, 2011.But, because of his own health problemsand a desire not to see patients travel toseek treatment, Defendant shifted hispractice to pain management. Id. at 74;Trial Tr., 61, August 15, 2011. Defendantmaintained a busy practice. From 2001through 2007, Defendant worked on Mon-days and Wednesdays. Trial Tr., 75, July20, 2011. Between the years 2005 and2007, Defendant saw, on average, 80 to 100patients in one day. Id. at 76. Theseappointments lasted between two and fiveminutes. Id. at 77, 141, 169. In March2007, Defendant moved his pain clinic outof the main orthopedic practice in which hehad been practicing. In the new office,Defendant worked four days per week for3.5 to 4 hours per day. Trial Tr., 71,August 9, 2011. As part of this practice,Defendant prescribed his patients opioids,such as oxycodone and hydrocodone, bothof which are regulated by the ControlledSubstances Act.1

A grand jury indicted Defendant on 129counts, alleging various violations of theControlled Substances Act. Prior to trial,the Government dismissed 45 counts.Thereafter, the district court held a five-week jury trial on the remaining 84 counts.At the close of the Government’s case inchief, Defendant moved for a judgment ofacquittal on all counts. The district courtdenied the motion. Defendant renewedhis motion after all the evidence had beenpresented. The district court took the mo-tion as to counts 1 and 2 under advise-ment, but otherwise denied the motion.Counts 1 and 2 related to a patient whodied, allegedly as a result of the prescrip-tions listed in the counts. The jury foundDefendant guilty on 40 counts, includingcounts 1 and 2. Three counts were forusing a telephone in furtherance of drugdistribution, while 37 counts were for un-lawfully distributing Schedule II and IIIcontrolled substances. The district courtsubsequently issued a written opinion de-nying Defendant’s motion for judgment ofacquittal as to counts 1 and 2.

Defendant then filed this appeal, raisingsix issues.2 First, Defendant challengesthe sufficiency of the evidence supportingthe non-death counts. Second, Defendantasserts the district court erred in denyinghis motion for judgment of acquittal oncounts 1 and 2. This argument raises fivesub-issues: (1) whether the Governmentproved the medications were not for alegitimate medical purpose; (2) whether areasonable juror could find the patient’sdeath resulted from the use of the con-trolled substances in counts 1 and 2; (3)

1. Oxycodone is a synthetic derivative of mor-phine and is a common ingredient in a num-ber of pain medications such as Percocet.Trial Tr., 42, July 27, 2011. OxyContin is thetime release form of oxycodone, meaning thata person takes one pill and the medication inthat pill is released over a 12 hour period.Id. Hydrocodone is a synthetic derivative of

morphine and is the active ingredient in med-ications such as Lortab and Norco. Id. Oxy-codone mixtures are Schedule II substancesand hydrocodone mixtures are Schedule IIIsubstances.

2. For clarity, we discuss these issues in adifferent order than Plaintiff’s opening brief.



whether the district court erred in consid-ering an autopsy report as evidence sepa-rate and apart from a different medicalexaminer’s testimony; (4) whether reason-able doubt existed that the patient’s deathresulted from the medications Defendantprescribed; and (5) whether the patient’sdeath was a ‘‘reasonably foreseeable’’ con-sequence of Defendant’s prescriptions andwhether the district court properly in-structed the jury on reasonable foresee-ability. Third, Defendant believes the dis-trict court erred in permitting Dr. StacyHail, a toxicologist, to offer expert opiniontestimony. Fourth, Defendant posits thedistrict court erred in admitting Govern-ment Exhibit 133, a compilation of chartsshowing the annual rankings in Utah ofthe top ten issuers of hydrocodone andoxycodone prescriptions from 2005through 2009. Fifth, Defendant arguesthe district court erred in sentencing De-fendant to 20 years imprisonment on count1. Sixth, and finally, Defendant contendsthe district court committed plain errorwhen it imposed a general sentence of 240months as to all the counts. We addresseach argument in turn.

II.

The Controlled Substances Act prohibitsa person from dispensing or distributing acontrolled substance.3 21 U.S.C.§ 841(a)(1). But a physician is exemptfrom this prohibition as long as he is regis-tered and acting as authorized. 21 U.S.C.§§ 802(21), 822(b). For a controlled sub-stance prescription to be effective, the pre-scription ‘‘must be issued for a legitimatemedical purpose by an individual practi-tioner acting in the usual course of hisprofessional practice.’’ 21 C.F.R.§ 1306.04(a). Defendant challenges hisconvictions relating to Michelle Russell,Scott Blanscett, Kade Brown, Billy RayCower, Allan Starr, Jennifer Johnson, andRobert Stubblefield. In order to convictDefendant on the applicable counts, name-ly 4–7, 18–26, 32–35, 41–42, 81–84, 108,120–121; and 123–124 (the non-deathcounts),4 the jury had to conclude beyond areasonable doubt that Defendant knowing-ly and intentionally prescribed the con-trolled substances to each of these patientsoutside the usual course of medical prac-tice or without a legitimate medical pur-pose.5 United States v. Nelson, 383 F.3d1227, 1232 (10th Cir.2004).

3. Title 21 U.S.C. § 841(a)(1) provides: ‘‘Ex-cept as authorized by this subchapter, it shallbe unlawful for any person knowingly or in-tentionally—(1) to manufacture, distribute, ordispense, or possess with intent to manufac-ture, distribute, or dispense, a controlled sub-stance.’’ The penalty section provides that‘‘any person who violates subsection (a) [of§ 841] shall be sentenced as follows: TTT Inthe case of a controlled substance in scheduleI or II, TTT such person shall be sentenced toa term of imprisonment of not more than 20yearsTTTT’’ 21 U.S.C. § 841(b)(1)(C). Thestatute further states that ‘‘in the case of anycontrolled substance in schedule III, suchperson shall be sentenced to a term of impris-onment of not more than 10 yearsTTTT’’ 21U.S.C. § 841(b)(1)(E)(i).

4. In his opening brief issue statement andheading for the section, Defendant states he ischallenging the sufficiency of the evidence on

counts 4–7, 18–26, 32–35, 41–42, 81–84, 108,and 120–124. He also requests in his conclu-sion to his opening brief that we vacate hisconviction on those counts. But, in one sen-tence of his opening brief, Defendant providesa different set of counts which includescounts 8–17, but excludes count 122. In hisreply brief, Defendant explicitly states he isnot appealing his conviction on counts 8–17.Because Defendant, in his issue statementand conclusion of his opening brief, as well asin his reply brief, asks us to vacate the convic-tions only on counts 4–7, 18–26, 32–35, 41–42, 81–84, 108, and 120–124, those are thecounts we consider on appeal, with the excep-tion of count 122, which never existed in theindictment because of a numbering error.

5. We note the district court incorrectly in-structed the jury they must find ‘‘that thedefendant knowingly and intentionally pre-scribed the controlled substances outside the



[4] In conducting our de novo review,‘‘we must examine whether, viewing theevidence in the light most favorable to theGovernment, any rational trier of factcould have found the defendant guilty ofthe crime beyond a reasonable doubt.’’United States v. Cooper, 654 F.3d 1104,1115 (10th Cir.2011) (internal quotationmarks omitted). We do not, however,‘‘weigh conflicting evidence or considerwitness credibility.’’ Id. Moreover, ‘‘thefact that prosecution and defense wit-nesses presented conflicting or differingaccounts at trial does not necessarily ren-der the evidence insufficient.’’ Id.

Defendant claims his case is unique be-cause the Government did not charge himwith healthcare fraud, conspiracy, or anyother crime indicating a scheme by whichDefendant sought to gain from unlawfulprescribing. Defendant asserts the Gov-ernment did not contend that every pre-scription Defendant wrote to the patientslisted in the indictment was unlawful.Rather, Defendant believes the Govern-ment charged a violation of the ControlledSubstances Act based on insufficient de-tails in Defendant’s charts for prescribingto a particular patient on a particular day.Defendant posits one doctor’s subjectiveopinion of another’s charting practices isnot evidence of unlawful prescribing. Al-ternatively, Defendant contends that if theevidence against him amounted to a crimi-nal violation of the Controlled SubstancesAct, his due process rights were violatedbecause the statute failed to provide him

with notice that his conduct was prohibit-ed. Defendant argues that no other physi-cian has engaged in analogous conduct andbeen prosecuted. Therefore, he had noway of knowing his conduct would subjecthim to prosecution. In addition, he as-serts the language ‘‘outside the usualcourse of professional medical practice’’and ‘‘without a legitimate medical purpose’’is overly broad and vague.

The Government contends Defendantwaived his sufficiency challenge on thenon-death counts because of inadequatedevelopment of any factual or legal issues.But even if we review the challenge, theGovernment argues Defendant cannot pre-vail. The Government cites evidence thatDefendant did not take adequate medicalhistories, failed to conduct physical exams,provided excessive quantities of drugs,and provided prescriptions to patients henever saw. The Government states pa-tient visits were extremely short and con-sisted of Defendant asking the patient ifhe or she wanted a refill, with no medicalexamination or determination that thedrugs provided the patient any benefit.The Government states Defendant provid-ed prescriptions to his patients withknowledge that the patient was doctorshopping, abusing his or her medication,had shared his or her medication, or hadtaken Suboxone to treat narcotic abuse.6

The Government also cites to evidencethat Defendant provided early refills, sawan excessive number of patients per day,

bounds of professional medical practice andnot for a legitimate medical purpose.’’ JuryInstruction 16 (emphasis added); see alsoJury Instructions 20 and 22. In 2004, weheld that ‘‘[a] practitioner has unlawfully dis-tributed a controlled substance if she pre-scribes the substance either outside the usualcourse of medical practice or without a legiti-mate medical purpose.’’ Nelson, 383 F.3d at1231–32 (emphasis added). This distinctionis unimportant in this case, however, because

the evidence was sufficient for the jury toconclude Defendant prescribed the controlledsubstances outside the usual course of medi-cal practice and without a legitimate medicalpurpose.

6. Suboxone is a synthetic opioid combinedwith a narcotic antagonist. Trial Tr., 50, July27, 2011. Suboxone treatments are used totreat narcotic abuse. Id. at 138.



took no vital signs, and had cut and pasteentries on his medical charts.

We disagree with the Government thatDefendant waived his sufficiency chal-lenge. We therefore turn to the merits ofDefendant’s claim. At trial, all seven ofthese patients testified. In addition, Dr.Bradford Hare, a pain management doc-tor, testified about his review of Defen-dant’s charts concerning those patients.Although Defendant did not make an indi-vidual argument for each patient, we be-lieve we must examine whether the Gov-ernment provided sufficient evidence toshow Defendant prescribed controlled sub-stances to each patient outside the usualcourse of medical practice and without alegitimate medical purpose.

A.

1.

We first look at the evidence the juryheard regarding Michelle Russell, the pa-tient involved in counts 4–7. Russell be-gan seeing Defendant because of some ten-derness in her wrist. Trial Tr., 101, July27, 2011. Defendant found the tenderness,but did no further exam and took no x-rays. Defendant prescribed Lortab. Rus-sell continued to see Defendant, but De-fendant noted no further evaluation of thewrist pain in her chart. Id. at 102. An-other doctor referred her back to Defen-dant for possible carpal tunnel syndrome,but Defendant continued to prescribe Lor-tab. At some point, Defendant added toRussell’s chart that she was having lowerback pain, but the chart did not indicateDefendant evaluated the back pain. Id. at103. Defendant eventually diagnosed Rus-sell with degenerative disc disease. Id. at104. But the chart does not suggest thatDefendant conducted an examination orordered any tests, such as an M.R.I. scanthat would have justified that diagnosis.Based on his review of the file, Hare con-

cluded no medical justification existed forthe prescriptions and that Defendant pre-scribed the Lortab for no legitimate medi-cal purpose. Id. at 105.

Michelle Russell testified at trial. Shestated that although she told Defendantshe had wrist pain, she lied in order to getmedication. Trial Tr., 110, August 4, 2011.Russell testified that Defendant grabbedone of her wrists and examined it. He didnot run any tests and wrote Russell aprescription. She testified she would nothave gone back to Defendant had he notprescribed Lortab, but he did so on amonthly basis. The only other time De-fendant examined Russell was when shecomplained about her back. Id. at 111.The exam consisted of Russell standing upand then bending over. During the timeRussell visited Defendant, she admittedlywas ‘‘doctor shopping,’’ which means shereceived the same prescription from morethan one doctor. Id. at 116. Eventually,the Drug Enforcement Administrationasked Russell to go undercover. At one ofthese undercover visits, Defendant was al-ready writing Russell a prescription forLortab when she walked into his office andDefendant did not perform an exam orinquire about her pain or medical condi-tion. Id. at 124–25.

2.

Counts 18–26 involved Scott Blanscett.Blanscett came to Defendant’s office com-plaining of an injury to one of his toes.Trial Tr., 123, July 27, 2011. Defendantprescribed Blanscett hydrocodone andLortab. Dr. Hare concluded Defendantdid not issue the drugs to Blanscett for alegitimate medical purpose based on De-fendant’s evaluation of the patient. Id. at123. Prior to seeing Defendant, andthroughout the time Defendant was pre-scribing medication for Blanscett, Blan-scett was receiving at least as much medi-



cation, if not more medication, from otherdoctors. Id. at 125. Defendant did notdetect this. Hare was concerned aboutthe lack of follow-up information, and noindication that Blanscett was deriving anybenefit from the prescriptions. Id. at 126.Hare noticed a number of early refillswhen the direction on the prescriptionswould indicate a certain duration for theprescription. Id. at 130. Hare testifiedBlanscett sometimes would use his medi-cations twice as fast as prescribed. Blan-scett claimed to have lost prescriptions,but the controlled substance databasemaintained by the Utah Division of Occu-pational and Professional Licensingshowed Blanscett had in fact filled theprescription. Defendant did not draw anycontrolled substance database samplesduring the time he was treating Blanscett.Id. at 134. Defendant eventually detectedBlanscett’s abuse, but not until the end oftheir time together.

Blanscett testified that he went to seeDefendant for his toe. Trial Tr., 146, Au-gust 1, 2011. Defendant looked at his toeand gave him a prescription for hydroco-done, but nothing in the medical recordindicates Defendant prescribed hydroco-done on that first visit. Blanscett testifiedDefendant did not take any kind of historyand did not listen to his heart. Id. at 148.Defendant also prescribed Blanscett Per-cocet in April 2006, though it was notindicated on his medical chart. Id. at 149.During this time period, Blanscett admit-ted receiving OxyContin and hydrocodonefrom other doctors. Id. at 153. The Gov-ernment asked Blanscett why he kept go-ing back to see Defendant. Blanscett re-sponded, ‘‘Because I could.’’ Defendantdid x-ray Blanscett’s ankle and told Blan-scett he did not have a major tear or

break. Id. at 155. Blanscett testified thathe once received a prescription from De-fendant without seeing him. Id. at 164.Blanscett called Defendant and told him heneeded a refill and Defendant ‘‘said hewould drop it off at the Brigham Cityemergency area place there’’ for Blanscettto pick up. Id. at 165. The prescriptionwas in an envelope, pinned to a corkboardin the hospital.

3.

Kade Brown is the patient relating tocounts 32–35 of the indictment. Hare tes-tified Defendant, in his physical examina-tion of Brown, believed Brown was neuro-logically intact.7 Trial Tr., 112, July 27,2011. The medical record does not pro-vide any indication of what tests Defen-dant performed to make the determinationthat Brown was neurologically intact.Hare stated he would expect to see thatinformation in the chart. Defendant pre-scribed Brown OxyContin. Hare believedthe specific dosage was too high for thepatient. Id. at 113. Hare further testifiedthat Defendant did not have a legitimatemedical purpose in prescribing the Oxy-Contin. Later, Defendant diagnosedBrown with degenerative disc disease, butHare could find no evidence in the chartthat Defendant had been able to diagnosethat disease. Id. at 117. Moreover, Haresaw no evidence in the chart that Defen-dant had received diagnoses from otherphysicians in consultation that provided abasis for the diagnosis. Hare concludedthat each of the prescriptions Defendantprescribed for Brown were not issued for alegitimate medical purpose. Id. at 120.

Kade Brown testified that, at his firstvisit to Defendant, Defendant did not run

7. If a physician believes that a neurologicexamination is not needed on a patient be-cause that patient ‘‘seems to walk and talkpretty normally and moves around pretty nor-

mally TTT the patient seems to be neurologi-cally intact,’’ which means the nervous systemseems to be functioning normally. Trial Tr.,66, July 27, 2011.



tests, did not take his blood pressure, didnot listen to his heart, did not listen to hislungs, did not look in his throat or nose,did not take his temperature, and did nottake his weight. Trial Tr., 28, July 22,2011. Instead, Defendant ‘‘poked [his]back and kind of touched [his] back.’’Brown’s second visit was for a refill of theOxyContin. At the follow up visit, Defen-dant again did not take any history, runany tests, or check any vitals. Id. at 31.Brown testified that at subsequent visits,Defendant ‘‘didn’t do anything. He justcame in and said hi and we talked for aminute and I got the refills.’’ Id. at 33.Twelve days after his third visit, Brownhad taken all of his 30–day supply of Oxy-Contin, so he returned for a refill. Id. at34. Defendant gave Brown another fullprescription at that time. The nextmonth, Defendant doubled Brown’s dos-age. Id. at 35. Brown testified nothingwas different with respect to that visit.Although Defendant talked to Brownabout performing an M.R.I. scan, Brownnever had one done. Id. at 36. Brownstated that he could not afford the scan.Id. at 103. At one point, Brown and De-fendant talked about Brown doctor shop-ping because Brown had received a pre-scription from an ‘‘instacare’’ facility. Id.at 38. Defendant cautioned Brown andthey agreed Brown would not doctor shop.Id. at 39. Despite Brown having previous-ly signed a controlled substances contractwith Defendant, a document agreeing thata specific physician will be the only provid-er of medication for a patient, Defendantdid not terminate Brown as a patient. De-fendant did not change his medication ordosage or place Brown under any limita-tions. Id. at 40. On March 13, Defendantprescribed Brown OxyContin 40 and Lor-tab. He went through those medicationsquickly and came back 13 days later. Id.at 45.

Even though Defendant noted inBrown’s chart that Brown had degenera-tive disc disease, Defendant never relayedthis diagnosis to Brown. Id. at 46. More-over, Brown never had an M.R.I. scan orx-ray of his back. Brown continued to gothrough his monthly supply of medicationsquickly and returned consistently beforehis monthly appointment. Id. at 47. De-fendant continued to prescribe Brown fullprescriptions despite the shortened timeperiod between appointments. Id. at 48.To make matters worse, Brown’s insur-ance had stopped paying for the pain med-ication. He began selling some of themedication in order to pay for the drugs.Id. at 49. When he would run out of pillsand could not see Defendant, Brown wouldturn to heroin. On one occasion, Brownhad gone through his pills in eight or ninedays because he sold them. Id. at 51.Brown told Defendant that he threw themaway because they were too strong.Brown testified Defendant told him ‘‘peo-ple like us don’t throw pills away.’’ Id. at52. Brown took that statement to mean‘‘an addict, a junkie.’’ Defendant refilledhis prescription, but gave him 60 pills of alower dose. Brown returned twelve dayslater after he had gone through all thepills. Defendant provided Brown with aprescription for 90 pills. Once Defendantmoved into his new office, the processmoved faster. Id. at 59. Brown wouldcheck in at the front desk. Then someonewould call him back and Defendant wasready to see him. ‘‘The visit would takeplace with the same introduction. Hi.How are you? Refills? Yes. Any prob-lems? No. Then he would write it out orthey would already be written out, andthen I would take them and go.’’ Id.

4.

Counts 41 and 42 relate to Billy RayCower. Again, Hare testified that Defen-dant did not have a legitimate medical



purpose to issue the prescriptions to Cow-er. Trial Tr., 135, July 27, 2011. Harebelieved Defendant prescribed Percocet toCower based on the diagnosis of Osgood–Schlatter disease, a condition sometimesknown as ‘‘growing pains’’ among adoles-cents. Id. at 136. Hare stated this condi-tion is an intermittent problem, and not acontinuous chronic pain problem. Haresuggested that at no point did Defendanthave adequate information to prescribehim controlled substances. Id. at 136–37.Over time, the number of Percocet pillsincreased. Id. at 137. Nothing in Cower’smedical chart showed that the medicationprovided Cower any benefit. In December2007, a message on Defendant’s answeringmachine alerted Defendant that Cowerwas receiving Suboxone treatments. Id. at138. A subsequent notation from January2007 indicated that Defendant would ‘‘stepaside’’ to let Cower continue the Suboxonetreatment. Cower, however, requested ox-ycodone and Defendant obliged him.

Cower testified that at his first visit, hetold Defendant he had been diagnosedwith Osgood–Schlatter when he was youn-ger. Trial Tr., 176, July 28, 2011. Defen-dant examined Cower’s knees and thenDefendant asked Cower if he needed any-thing for pain. Other than stating he hadOsgood–Schlatter disease, Cower providedno other history to Defendant. Defendantdid not check Cower’s blood pressure,weight, heart, or lungs. Id. at 177–78. Atlater visits, Cower would go in to a room,Defendant would ask if he needed a refill,then Defendant would write the prescrip-tion and Cower would leave. Id. at 178.Defendant never performed an exam ortook vitals before increasing a dosage. Id.at 182. Defendant wrote in Cower’s chartthat he suffered from degenerative arthrit-ic knees, but never told Cower of thediagnosis. Id. at 181.

Cower began feeling nauseous if hestopped taking his medication. Id. at 185.He had cold sweats and could not sleep.He was shaky, had diarrhea, and felt likehe had the worst flu he had ever had in hislife. Defendant never explained the conse-quences of withdrawing from the medi-cation to Cower and never developed atreatment plan. Once Defendant movedinto his new office, Cower’s visits becameshorter. Id. at 186. Cower would walk in,pay his co-pay and sit down for a fewminutes. Then he would be called into theoffice and asked if he needed a refill.Cower would then leave after obtaining therefill.

5.

Hare also reviewed patient Allen Starr’smedical chart. Starr was the patientnamed in counts 81–84 of the indictment.Hare believed Defendant’s evaluation ofStarr’s history, physical examination, andfollow-up treatment was inadequate tosupport the prescription of the amount ofopioid medications. Trial Tr., 148, July 27,2011. Starr was eighteen years old andhad back pain for four months before see-ing Defendant. His x-rays were normaland he was neurologically intact. Id. at149. Hare believed Starr’s family pushedto get Starr on opioids. Defendant esca-lated the amount of methadone he pre-scribed to Starr without explaining in thechart why he changed the dose. Id. at150. By the time Starr turned 20 yearsold, Defendant diagnosed him with degen-erative disc disease, but Hare stated noth-ing in the medical record supported thatdiagnosis. Id. at 152.

Starr testified he asked Defendant aboutOxyContin on the first visit. Trial Tr.,153, August 3, 2011. Defendant told himhe had never prescribed OxyContin for an18 year old. Starr’s stepmother thenasked about methadone. Defendant pro-



vided him with methadone without per-forming a physical examination. Id. at152. Defendant did not warn Starr aboutthe effects of methadone. Id. at 153. Onesummer, Starr worked in New Mexico.Id. at 161. Starr obtained four prescrip-tions for methadone from Defendant with-out returning to Utah. Starr said hewould arrive at Defendant’s office, sitdown at his table, and Defendant wouldask if Starr needed a refill. Id. at 163.Defendant would write Starr a refill with-out examination and Starr would leave.Id. at 164. Defendant eventually addedLortab to Starr’s prescription of metha-done, but after the Lortab made Starrsick, Starr switched to Percocet. Id. at164–65.

Starr left Utah and did not see Defen-dant for over one year. Id. at 180. WhenStarr returned, Defendant had moved tohis new office. Defendant did not run anynew tests and did not tell Starr he wasdiagnosing him with degenerative disc dis-ease. Id. at 180–81. Starr did not provideDefendant with the M.R.I. scans that otherdoctors had ordered during the year away.Id. at 181. Once Defendant moved to hisnew office, Starr would sit down and ex-plain how he was feeling more pain andDefendant would write a refill. Id. at 183.Starr would then leave.

6.

Jennifer Johnson was the patient namedin count 108. Hare testified Defendant didnot prescribe the controlled substanceslisted in the indictment for a legitimatemedical purpose. Trial Tr., 157, July 27,2011. Hare said Defendant’s initial evalu-ation of Johnson was inadequate to sup-port the prescribing of the controlled sub-stances. And as Johnson proceededthrough treatment with Defendant, Harebelieved the fact that she was obtainingmedications from many doctors simulta-

neously to his prescribing was evident.Defendant noted in Johnson’s chart at theinitial visit that Johnson stated the onlymedication she was taking was Xanax. Id.at 158. A check of the controlled sub-stances database at the time would haveshowed she was obtaining hydrocodone‘‘pretty continuously’’ for several years pri-or from another doctor. In another pa-tient’s chart, Johnson was labeled as adoctor shopper. This note from April 23,2008 indicated that Defendant said hetalked to Johnson, but the subject is notnoted in Johnson’s chart. Id. at 159. Ap-proximately four to six weeks later, anoth-er indicator from the narcotics strike forceappeared in Johnson’s file that she wascontinuing to get prescriptions from otherproviders. At that point, Defendant statedhe would not see her again. Id. at 160.Defendant, however, continued to pre-scribe Johnson Aprazolam, an abusablesubstance, through November 2008 andprescribed Lortab once in November 2008.

Johnson testified that Defendant didlook at x-rays taken by an emergencyroom physician and asked about a car acci-dent. Trial Tr., 125, July 28, 2011. De-fendant did not weigh Johnson, did nottake her blood pressure, did not listen toher heart or to her lungs, did not take hertemperature, and did not look in hermouth, ears, or nose. Id. at 125–26. De-fendant looked at her back and pressed onparts of her back and prescribed her Lor-tab. Id. at 126–27. When Defendantpracticed in his old office, Defendant wouldask her if she needed a refill and shewould say ‘‘yes.’’ Id. at 128. Defendantwould write out the prescription, talk intoa recorder, and record what transpired atthe visit. Defendant did not perform anyevaluations at subsequent visits, evenwhen he doubled her dosage. Id. at 128,132. Defendant diagnosed Johnson withdegenerative disc disease, but never in-formed her of the diagnosis. Id. at 135.



In November 2008, Johnson attempted tocommit suicide by cutting her wrist. Id. at141–42. After leaving the emergencyroom after being treated for the suicideattempt, Johnson walked to Defendant’soffice and scheduled an appointment for afew days later. At the appointment, De-fendant did not ask her what had beenhappening in her life, did not ask herabout the emergency room visit, and didnot mention the bandage on her hand. Id.at 142. Defendant asked Johnson whethershe was still taking Suboxone and she saidno. He then provided her with Lortab.During the 2008 period, Johnson was tak-ing 25 to 50 Lortab pills per day. Id. at143.

7.

Finally, we turn to patient Robert Stub-blefield, who was the subject of counts120–121 and 123–124 of the indictment.Hare again concluded Defendant did notissue the prescriptions to Stubblefield for alegitimate medical purpose. Trial Tr., 161,July 27, 2011. Hare said Stubblefield was25 years old and had back pain from arecent fall and some diffuse tenderness.Id. at 162. Stubblefield was neurologicallyintact. Although Hare said short-termprescriptions may have been justified, along-term prescription of increased dosesof pain medication with no further evalua-tion was not justified. Stubblefield begandoctor shopping. Defendant wrote inStubblefield’s chart that he would be will-ing to see him if he was the only prescri-ber. Id. at 163. Defendant told Stubble-field he would check the database everyother visit. But Hare testified no one inthe office ran a check of the database. Inaddition, Defendant prescribed early refillsfor Stubblefield. Trial Tr., 10, July 28,2011. In November 2006, Defendant pre-scribed OxyContin and Percocet to Stub-blefield. He returned two weeks later andDefendant refilled the same medication

‘‘with really no indication of any furtherproblems or issues.’’ Id. Hare describedthis use of Stubblefield’s medication as a‘‘fairly continuous pattern.’’ Id. at 11.

Stubblefield testified that at his firstvisit to Defendant, Defendant did not takea medical history or perform a physicalexamination before giving him a prescrip-tion for Percocet. Trial Tr., 63–64, July29, 2011. At the second visit, Defendanttold Stubblefield that he had not yet re-ceived his medical records, but if he need-ed a refill, he would write a prescription.At the third visit, Defendant increasedStubblefield’s dosage. Id. at 65. Defen-dant had Stubblefield sign a controlledsubstances agreement. But the next nota-tion in the chart is a conversation regard-ing Stubblefield’s arrest for falsifying aprescription and Stubblefield’s problemswith doctor shopping. Id. at 67–68. De-fendant did not terminate the relationshipand continued prescribing for Stubblefield.Id. at 68. As to his early refills, Stubble-field said he would call the office to makean early appointment. He said, ‘‘[m]aybeonce it became an issue that we wereearly, but we would do it every month.’’Id. at 84.

B.

[5] Defendant asserts the Govern-ment’s chief evidence was Dr. Hare’s sub-jective opinion of Defendant’s chartingpractices, which does not amount to unlaw-ful prescribing. The jury did not convictDefendant for failing to chart correctly.Hare looked at Defendant’s charts. Heexplained to the jury that no legitimatemedical basis existed to prescribe the med-ications in the quantity and over the timespan Defendant prescribed to each indict-ment patient in this appeal. The chartsrevealed such activities as early refills onprescriptions, lack of depth in examina-



tions, and instances where Defendant re-corded a diagnosis without relaying thatinformation to the patient. Accordingly,the evidence to support his convictioncame from the information gleaned fromthe charts, not one doctor’s subjectiveopinion of another’s charting practices.

Defendant additionally contends Haredid not testify the medications Defendantprescribed were ‘‘incorrect’’ to treat eachpatient’s pain or that the quantity wasunreasonably high. We disagree. Haretestified that no medical justification exist-ed for the prescriptions Defendant wroteRussell and that Defendant prescribed theLortab outside of a legitimate medical pur-pose. Trial Tr., 105, July 27, 2011. Haretestified Blanscett was receiving narcoticsfrom other doctors and that Defendantwas providing early refills without any in-dication the medications were helpingBlanscett. Id. at 125–26, 130. Hare stat-ed Defendant’s prescribed dosage forBrown was too high. Id. at 112. As toCower, Hare believed Defendant neverhad adequate information or a diagnosis toallow Defendant to initiate the prescribingof controlled substances. Id. at 136–37.Hare stated no information supported pre-scribing the amount of opioid medicationsDefendant prescribed to Allen Starr. Id.at 148. As to Johnson, Hare found inade-quate support to justify prescribing con-trolled substances and added that a checkof the controlled substances databasewould have shown she was obtaining hy-drocodone on a regular basis. Id. at 157–58. Finally, Hare testified that long-termprescribing of increased doses of painmedication to Stubblefield with no furtherevaluation was unjustified. Id. at 162.

Defendant further argues the Govern-ment is unable to point to any specificevidence that shows Defendant steppedout of his role as a physician and into thatof a criminal drug dealer. But the above

trial testimony reveals the Government didpresent evidence as to each patient namedin the non-death counts. Dr. Hare statedthat Defendant prescribed to each patientwithout a legitimate medical purpose.And each of these patients backed upHare’s testimony. Moreover, the frontdesk receptionist testified that on two dayswhen Defendant was sick, she gatheredthe charts for that day and another staffmember took the prescription pad to De-fendant’s home. Trial Tr., July 20, 2011,164–65. The receptionist saw the staffmember return with the charts and pre-scriptions that Defendant signed. Id.The receptionist did not cancel the ap-pointments. Instead, she greeted the pa-tients and put them in a room. Id. at 166.A staff member would go into the roomand give the prescription to the patientand say that Defendant was ill that day.Id. The patient would leave, check out atthe back desk, and make his or her nextmonthly appointment. Id.

Despite the above facts, Defendant at-tempts to distinguish the facts of his casefrom two cases in which he states thephysician engaged in blatant criminal con-duct. In the first case, United States v.Moore, 423 U.S. 122, 96 S.Ct. 335, 46L.Ed.2d 333 (1975), the Supreme Courtdetermined persons registered under theControlled Substances Act could be prose-cuted under the Act. The Supreme Courtstated Moore had ‘‘conducted a large-scaleoperation.’’ Id. at 126, 96 S.Ct. 335.Three District of Columbia pharmaciesfilled 11,169 prescriptions from Moore overa 5.5 month period. On 54 days duringthat time period, Moore wrote over 100prescriptions a day. Moore billed his pa-tients using a ‘‘sliding-fee scale’’ based onthe quantity prescribed. Moore gave hispatients only ‘‘the most perfunctory exami-nation,’’ consisting of a request to see thepatient’s needle marks and an unsuper-vised urinalysis. Id. Moore performed no



physical exams at follow up appointments,did not keep accurate records, did notrecord the quantity of drugs prescribed,and did not supervise the administration ofthe drug.

Defendant also cites United States v.Feingold, 454 F.3d 1001 (9th Cir.2006).Feingold prescribed controlled substancesto patients he never physically examined.He did not record the medical basis forprescribing the drugs in his patients’ medi-cal charts. Feingold prescribed controlledsubstances to recovering addicts and pre-scribed in excess of the maximum dosageshe recommended. In one case, Feingoldprescribed more than 3,000 pills to a pa-tient in a single month. Two of Feingold’spatients were undercover DEA agents.Even with all of this evidence, Feingoldinsisted he had been prescribing the drugsin good faith to help his patients managetheir pain. Id. at 1006.

Defendant attempts to distinguish hiscase by arguing that all of the indictmentpatients were his actual patients and notundercover law enforcement, although twoof his patients later became confidentialinformants. Defendant further reasons allof the prescriptions at issue were in thecontext of a regular doctor visit and noevidence suggested that he ever chargedbased on the number of prescriptions orthe quantity or type of medications. De-fendant fails to see his conduct is similar tothe defendants’ conduct in the cases hecites. Neither the Supreme Court inMoore, nor the Ninth Circuit in Feingoldstated that a specific set of facts had to bepresent in order to find that a physicianstepped outside of his role and issued pre-scriptions without a legitimate medicalpurpose. Both cases looked to the facts inthe record to conclude enough facts exist-

ed for a fact finder to affirmatively deter-mine that the physician issued the drugsfor an improper purpose. Defendant ar-gues that his patients legitimately experi-enced pain. Even assuming each patienthad pain, a doctor may still prescribe med-ications without a legitimate medical pur-pose. Hare’s testimony, as well as thetestimony of the patients, illustrates thisvery point.

Viewing the evidence in the light mostfavorable to the Government, we concludethe evidence in this case is quite sufficientto support Defendant’s convictions on thenon-death counts. See Moore, 423 U.S. at142, 96 S.Ct. 335 (evidence that the defen-dant physician ‘‘gave inadequate physicalexaminations or none at all,’’ ‘‘took noprecautions against [prescription] misuseor diversion,’’ and ‘‘did not regulate TTT

dosage’’ was sufficient to prove that ‘‘con-duct exceeded the bounds of ‘professionalpractice’ ’’); Feingold, 454 F.3d at 1004–05 (evidence was sufficient where doctorprescribed large quantities of controlledsubstances without conducting physicalexaminations or recording bases for theprescriptions in medical charts ‘‘over-whelmingly demonstrated his disregardfor proper prescribing practices’’); UnitedStates v. Tran Trong Cuong, 18 F.3d1132, 1139 (4th Cir.1994) (holding evi-dence sufficient to support convictionwhere doctor prescribed pain medicationfor ‘‘nebulous’’ ailments after ‘‘superficialphysical examinations’’).

C.

[6] We now address Defendant’s alter-native argument that the Controlled Sub-stances Act failed to provide him with fairnotice and that the statute is vague.8

8. Defendant argues that the language, ‘‘out-side the usual course of professional medicalpractice’’ and ‘‘without a legitimate medical

purpose,’’ is so broad that it can encompass agreat deal of lawful conduct. To the extentDefendant attempts to attack the statute as



‘‘Elemental to our concept of due processis the assurance that criminal laws must‘give a person of ordinary intelligence fairnotice that his contemplated conduct isforbidden by the statute,’ and those thatfail this test are treated as no laws at all:they are ‘void for vagueness.’ ’’ UnitedStates v. Lovern, 590 F.3d 1095, 1103 (10thCir.2009) (quoting Colautti v. Franklin,439 U.S. 379, 390, 99 S.Ct. 675, 58 L.Ed.2d596 (1979)). A vagueness challenge to astatute that does not involve the FirstAmendment ‘‘must be examined in light ofthe facts of the case at hand.’’ Vill. ofHoffman Estates v. Flipside, Hoffman Es-tates, Inc., 455 U.S. 489, 495 n. 7, 102 S.Ct.1186, 71 L.Ed.2d 362 (1982). Defendantargues no other physician who conductedhimself or herself in the same manner hasever been prosecuted under the ControlledSubstances Act. Accordingly, he could notknow he engaged in prohibited conduct.Despite his emphatic stance, Defendant ac-knowledges one factually analogous case,but dismisses its importance because theEleventh Circuit reversed and remandedthe defendant’s conviction on all counts.United States v. Ignasiak, 667 F.3d 1217(11th Cir.2012). Unfortunately for Defen-dant, before the Eleventh Circuit an-nounced it reversed because of a Confron-tation Clause issue, the court stated theevidence was sufficient to support the De-fendant’s conviction. Id. at 1229.

[7, 8] As applied to Defendant, theControlled Substances Act is not vague.Ignasiak aside, we conclude Defendanthad notice the statute prohibited his con-duct based on our own circuit case law.9

United States v. Jamieson, 806 F.2d 949,951 (10th Cir.1986) (prescribing doctorgave drugs when patients asked for themand wrote prescriptions when patientstook drugs more frequently than directed);United States v. Varma, 691 F.2d 460, 464(10th Cir.1982) (prescribing doctor took in-complete medical histories and gave shortand inadequate physical examinations).Defendant had several years of experienceas a doctor. At trial, Defendant testifiedthat a doctor has a responsibility to evalu-ate whether a patient is adversely affectedby prescriptions and to make sure his pa-tients are complying with medicationagreements. Trial Tr., 70, August 16,2011. Defendant also admitted at trialthat he did not look at certain controlledsubstance database reports. Id. at 83, 85,98, 106. Further, he often did not ques-tion his patients’ excuses for early refillsbecause he trusted them, even when look-ing to the controlled substance databasewould have shown those patients filled theoriginal prescription. Id. at 83. Patienttestimony revealed Defendant did not con-duct follow-up examinations before writingprescriptions for refills. A reasonable jurycould find Defendant knowingly prescribedcontrolled substances outside the usual

overbroad using the regulatory language, wedisagree. ‘‘[O]utside the limited First Amend-ment context, a criminal statute may not beattacked as overbroad.’’ Schall v. Martin,467 U.S. 253, 268 n. 18, 104 S.Ct. 2403, 81L.Ed.2d 207 (1984).

9. Even though we conclude Supreme Courtand circuit precedent foreclose Defendant’sdue process argument, we must address De-fendant’s underlying premise of this argu-ment. Defendant’s assertion his due processrights were violated because he was the firstdoctor engaging in this conduct to be prose-

cuted is simply untenable. Although the DueProcess Clause ‘‘bars courts from applying anovel construction of a criminal statute toconduct that neither the statute nor any priorjudicial decision has fairly disclosed to bewithin its scope,’’ United States v. Lanier, 520U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d432 (1997), the Due Process Clause does notbar the Government from filing chargesagainst a defendant if his conduct is withinthe scope of the statute, even when the Gov-ernment has never filed such charges in thepast.



course of medical practice and without alegitimate medical purpose. Based on therecord, we cannot say Defendant was thevictim of a law he did not understand.

III.

Next, Defendant argues the districtcourt erred in denying his motion forjudgment of acquittal on counts 1 and 2.Recall count 1 alleged Defendant pre-scribed oxycodone in violation of the Con-trolled Substances Act to David Wirick,resulting in Wirick’s death and count 2alleged Defendant prescribed hydrocodonein violation of the Controlled SubstancesAct to Wirick, also resulting in Wirick’sdeath. In addition to having to prove thatDefendant knowingly and intentionallyprescribed the controlled substances out-side the usual course of medical practiceor without a legitimate medical purpose,the Government, to convict Defendant oncounts 1 and 2, also had to prove Wirickdied as a result of taking the prescribedmedications and that his death was rea-sonably foreseeable.10 At oral argument,the Government addressed what it be-lieved to be a circuit split on the issue ofwhether the ‘‘death having resulted from’’language in the indictment is an enhance-ment or an element of the offense. Com-pare United States v. Krieger, 628 F.3d857, 867 (7th Cir.2010) (concluding manda-tory minimum provision in § 841(b) is asentencing enhancement provision); withUnited States v. Burrage, 687 F.3d 1015,1023–24 (8th Cir.2012) (referring to ‘‘deathresulted from’’ as an element without anal-ysis). Because we hold the Governmentpresented sufficient evidence to prove the

oxycodone resulted in death and the hy-drocodone resulted in death, we need notaddress this issue. We also must add thatbecause the Government requested an in-struction on reasonable foreseeability, itwas required to prove that element.United States v. Romero, 136 F.3d 1268,1273 (10th Cir.1998) (‘‘the Government isrequired to prove all elements put forth inunchallenged instructions to the jury, evenif the Government would not, under law,be otherwise required to do so’’). As wewill discuss in further detail below, be-cause of the posture of this case, we donot opine on whether § 841(b)’s languagecontains a foreseeability or proximatecause requirement.

A.

Wirick was a former firefighter who se-verely injured his back on the job. Wirickbegan seeing Defendant in 1999 and con-tinued to see him for approximately sevenyears. In January 2006, Wirick overdosedon methadone Defendant had prescribedhim. After the overdose, Wirick and hisfamily physician, Dr. Stephen Bruce,agreed that Bruce would exclusively treatWirick. Trial Tr., 27, August 3, 2011. Afew months after the agreement, Wirickwent to see Bruce, but Bruce was out oftown. Id. at 40. Wirick asked anotherdoctor in Bruce’s practice for an earlyrefill of pain medication, but that doctorrefused. Wirick then went to see Defen-dant on May 3, 2011. On that day, Defen-dant billed 92 patients in six and a halfhours. Trial Tr., 30, July 28, 2011. De-fendant prescribed Wirick both oxycodone

10. The penalty section of § 841 provides that‘‘[i]n the case of a controlled substance inschedule I or II [i.e., oxycodone], TTT if deathor serious bodily injury results from the use ofsuch substance [such person] shall be sen-tenced to a term of imprisonment of not lessthan twenty years or more than lifeTTTT’’ 21

U.S.C. § 841(b)(1)(C). ‘‘[I]n the case of anycontrolled substance in schedule III [i.e., hy-drocodone mixtures], TTT if death or seriousbodily injury results from the use of suchsubstance [such person] shall be sentenced toa term of imprisonment of not more than 15years.’’ 21 U.S.C. § 841(b)(1)(E)(i).



and hydrocodone. Three days later, Wir-ick died. Count 1 alleged Defendantknowingly and intentionally distributed 60ten-milligram oxycodone tablets to Wirick.Count 2 alleged Defendant knowingly andintentionally distributed 90 ten-milligramhydrocodone tablets to Wirick. Counts 1and 2 further alleged Wirick died as aresult of taking the prescribed medi-cations.

The Government introduced Wirick’s au-topsy report, prepared by Dr. MaureenFrikke. At the time of trial, Frikke wasdeceased. Dr. Todd Grey, Utah’s ChiefMedical Examiner, testified as to the causeof death. He posited Wirick died as aresult of the combined effects of drug tox-icities, specifically the combination of oxy-codone and Valium as well as pneumonia.Dr. Grey testified the level of hydrocodonewas below the limit of what is consideredpotentially toxic and the level of oxycodonewas in the therapeutic range. He furthertestified that pneumonia itself was poten-tially lethal. Dr. Stacy Hail, a toxicologist,also testified. Dr. Hail reviewed the au-topsy report and testified that Wirick diedof drug toxicity because of the presence ofhydrocodone, oxycodone, and Valium. Dr.Hail excluded pneumonia as an immediatecause of death. Dr. Michael Baden, De-fendant’s expert, opined that Wirick diedfrom a severe case of undiagnosed pneu-monia and that Wirick’s drug levels werenormal for people who used narcotics forprolonged periods of time.

At the close of the Government’s case,Defendant made his oral motion for judg-ment of acquittal. The district court de-nied the motion, concluding sufficient evi-dence existed in the Government’s case inchief from which a rational fact findercould find guilt beyond a reasonable doubt.At the end of trial, Defendant renewed hismotion on all counts, but stated he wantedto particularly focus on counts 1 and 2.

The district court sent the case to the jury,but took the renewed Rule 29 motion un-der advisement as to counts 1 and 2. Af-ter trial, Defendant filed a memorandumin support of his motion for acquittal oncounts 1 and 2. The district court issued awritten order denying the motion for judg-ment of acquittal on counts 1 and 2. Thecourt concluded that the facts, attendingcircumstances, and reasonable inferencesprovided evidence on which a jury couldconclude beyond a reasonable doubt thatDefendant acted outside the bounds ofprofessional practice and without a goodfaith belief that his prescriptions for Wir-ick were for a legitimate medical purpose.The district court further concluded theevidence was sufficient for the jury to rea-sonably conclude beyond a reasonabledoubt that the drugs in Wirick’s systemcame from Defendant’s prescriptions, theuse of the oxycodone and hydrocodone re-sulted in Wirick’s death, and the death wasreasonably foreseeable.

B.

Defendant first argues the Governmentdid not prove Defendant prescribed Wirickthe medications for any purpose other thana legitimate medical purpose. Defendantpoints to the trial testimony of Dr. Bruceand Wirick’s wife and son regarding Wir-ick’s documented chronic, severe lowerback pain. Trial Tr., 25, 70, 76, 112–13,August 3, 2011. Defendant suggests noevidence showed Wirick took medicationsfor recreational purposes or sold them toothers. Defendant asserts this testimonyproves that Wirick was in constant painand Defendant prescribed the prescrip-tions within the bounds of professionalmedical practice for the legitimate medicalpurpose of pain management. Defendantalso states Bruce did not have a problemwith the fact that Defendant saw Wirick onMay 3, which showed a disagreement be-



tween Bruce and Hare, two of the Govern-ment’s witnesses. Defendant asserts thatthis conflict, in and of itself, creates rea-sonable doubt on this issue as a matter oflaw.11

The jury heard evidence regarding De-fendant’s general manner of practice, in-cluding Defendant’s failure to take ade-quate medical histories and conductphysical exams. The jury heard Defen-dant was aware that Wirick overdosed onmethadone in January 2006, only twodays after Defendant prescribed the me-thadone. Trial Tr., 128, August 16, 2011.Defendant also saw 80 patients the dayhe prescribed the methadone. Trial Tr.,46, August 9, 2011. The jury saw no ev-idence in Wirick’s chart that Defendantcautioned Wirick about the methadone.The jury learned that after the overdose,Bruce spoke with Defendant regardingBruce and Wirick’s agreement thatBruce would be Wirick’s only doctor.Despite Wirick’s presence on Defendant’sdo-not-see list, Defendant prescribedWirick full prescriptions for oxycodone,hydrocodone, and Soma on May 3.12 Tri-al Tr., 136, August 16, 2011. The juryheard that Defendant did not check withBruce’s office before prescribing themedication on May 3. Id. at 131. De-fendant testified he did not take Wirick’svital signs. Id. at 135. On May 3, De-fendant saw 92 patients in 6.5 hours. Id.at 133. Even though Bruce testifiedWirick had a legitimate need for painmanagement, Bruce also stated Defen-dant acted inappropriately in providing

Wirick the quantity of drugs he gavehim on May 3. Trial Tr., 45–46, August3, 2011.

[9] To be sure, the jury heard conflict-ing evidence as to whether Defendant pre-scribed to Wirick outside the usual courseof medical practice and not for a legitimatemedical purpose. But conflicting evidencedoes not per se create a reasonable doubt.Where the evidence conflicts, ‘‘we acceptthe jury’s resolution of conflicting evidenceand its assessment of the credibility ofwitnesses.’’ United States v. Chavez–Mar-quez, 66 F.3d 259, 262 (10th Cir.1995).The above evidence, when examined in itsentirety and in the light most favorable tothe Government, is sufficient to show De-fendant stepped outside of his role as aphysician to Wirick and did not prescribethe medication for a legitimate medicalpurpose. Specifically, the jury heard evi-dence that Defendant did not check withBruce’s office on May 3 before writing theprescriptions and did not take Wirick’svital signs. Moreover, the jury heardBruce’s testimony that the quantity ofdrugs Defendant provided Wirick was in-appropriate and more than necessary totreat Wirick’s pain until Wirick could seeBruce. The jury could examine thesefacts and conclude Defendant engaged incriminal conduct. See Moore, 423 U.S. at142–43, 96 S.Ct. 335 (concluding doctoracted as a ‘‘large-scale ‘pusher’ not as aphysician’’ when he gave inadequate physi-cal examinations, ignored the results of thetests he did make, took no precautions

11. Even if Bruce had no problem with Wirickseeing Defendant, Bruce testified Defendantinappropriately gave Wirick the specific quan-tity of medication on the May 3 visit. TrialTr., 46, August 3, 2011.

12. Defendant states that Dr. Bradford Haretestified that an exclusive contract existed be-tween Dr. Bruce and Defendant that prevent-ed Defendant from prescribing Wirick medi-

cation. Trial Tr., 30, July 28, 2011. Haretestified ‘‘there was an exclusive contract withDr. Bruce that Dr. MacKay was aware of forDr. MacKay not to prescribe.’’ Id. Regard-less, Defendant correctly asserts that theagreement was an oral agreement betweenBruce and Wirick that Wirick would receivemedications solely from Bruce. Trial Tr., 20,27–28, August 3, 2011.



against a drug’s misuse and diversion, didnot regulate dosage, prescribing as muchand as frequently as the patient demand-ed). Accordingly, we agree with the dis-trict court that the evidence was sufficientfor the jury to conclude Defendant steppedoutside of his role as a physician.

C.

Next, Defendant contends the Govern-ment presented no testimony or evidencethat either medication, the oxycodone iden-tified in count 1 and the hydrocodone iden-tified in count 2, alone was sufficient tocause Wirick’s death. Rather, he says theGovernment’s experts testified that Wirickdied from the combined effect of thedrugs. The Government asserts Defen-dant forfeited this argument on appeal bynot raising it to the district court andfailing to argue for plain error review inhis opening brief. Defendant says his ar-gument is not ‘‘new’’ on appeal. Instead,Defendant states his argument is simply arecitation of what the Government wasrequired to prove in this case. In hisreply brief, Defendant states he challengedthe sufficiency of the evidence as to everydisputed element of the offenses. Defen-dant contends each time he made his Rule29 motion, he challenged the sufficiency ofthe evidence to prove the prescriptionscharged in counts 1 and 2 were unlawfullyissued, the medications prescribed causedWirick’s death, and Wirick’s death was areasonably foreseeable consequence of De-fendant’s issuance of the two prescriptions.Defendant posits that implicit in his argu-ment on causation ‘‘was that the Govern-ment had failed to prove that the oxyco-done or hydrocodone caused Wirick’sdeath.’’

We therefore must examine Defendant’sRule 29 motion. We agree with the Gov-ernment that, at trial, Defendant failed topresent this specific argument in his oralmotions for judgment of acquittal. TrialTr., 195–96, August 9, 2011, Trial Tr., 161,August 16, 2011. After trial, however, De-fendant filed a memorandum in support ofhis motion for acquittal on counts 1 and 2.Therein, Defendant argued the evidencewas insufficient to establish beyond a rea-sonable doubt that Wirick died as a resultof Defendant’s conduct and that Wirick’sdeath was reasonably foreseeable. Specif-ically, Defendant asserted the theory thatthe drugs killed Wirick ‘‘was only one offour causes of death that was presented attrial.’’ Defendant’s argument appeared tobe that four experts could not come to anagreement, therefore the jury could nothave found beyond a reasonable doubt thatthe drugs caused Wirick’s death. Withinthat argument, Defendant had one sen-tence relating to the issue he now raises onappeal: ‘‘Even Dr. Frikke TTT in her au-topsy report admitted TTT that neither thehydrocodone or the oxycodone alone wereat a concentration range that has beenreported to cause death and that Mr. Wir-ick’s pneumonia was a complication.’’Aplt. App’x 154. We will give Defendantthe benefit of the doubt that he raised thisissue in his Rule 29 motion.13

[10] Because Defendant did not forfeitthis argument, we turn to the merits ofDefendant’s second sufficiency claim. Inhis opening brief, Defendant asserts thejury had to reject Baden’s expert testimo-ny in its entirety in order to convict Defen-dant on counts 1 and 2. Defendant con-tends such a result is unreasonable. Wedisagree. When experts do not reach thesame conclusion, the jury is responsible for

13. Even if Defendant had forfeited the issueand we reviewed for plain error, our plainerror analysis in this context is essentially the

same as our usual sufficiency of the evidenceanalysis. United States v. Gallant, 537 F.3d1202, 1223 (10th Cir.2008).



making credibility determinations, not thecourt.14

We examine the record to determinewhether the jury could conclude beyond areasonable doubt that the oxycodone alonecould have caused death and that the hy-drocodone alone could have caused death.Dr. Frikke, the doctor who performed theautopsy, ‘‘certified that the death was dueto drug toxicity poisoning with hydroco-done and oxycodone.’’ Id. at 33. Dr.Grey, Utah’s Chief Medical Examiner,however, testified ‘‘Wirick died as a resultof combined effects of drug toxicities, spe-cifically with oxycodone and diazepam aswell as bronchopneumonia.’’ Trial Tr., 29–30, August 2, 2011. Grey testified that hedetermines drug toxicity based primarilyon the findings from toxicology. Id. at 39.In this case, the hydrocodone in Wirick’sblood sample was 0.09 milligrams per liter.Id. According to Grey, a hydrocodone levelof 0.09 ‘‘is a level that is above expectedtherapeutic and just below the lower limitof what is considered potentially toxic.’’Id. at 42. Likewise, the oxycodone in Wir-ick’s blood sample was 0.09 milligrams perliter. Id. at 39. Again, the oxycodone isin the high therapeutic range. Id. at 43.Grey testified that ‘‘[t]oxic level would beadverse effects. Lethal level would bewhat is reported as something that prettymuch guarantees you’re going to die le-thally.’’ Id. Grey believed that none ofthe individual drug levels would kill a per-son and that no specific drug was presentin Wirick’s body at a level high enough tobe considered lethal. Id. at 44, 47.

In contrast, Dr. Hail, the only boardcertified toxicologist to testify, stated thathydrocodone and oxycodone were the

drugs that resulted in Wirick’s death.Hail testified that although other drugsmay have contributed to Wirick’s death,the death would not have occurred absentthe hydrocodone and the oxycodone. Id.at 160–161. Contradicting Grey’s opinion,Hail testified ‘‘there is no such thing as alethal drug level postmortem.’’ Id. at 162.Hail provided the jury with an example.If everyone in the courtroom overdosed onhydrocodone at that moment and she drewblood levels in everyone, everyone wouldbe surprised how different the levels wouldbe in one person to the next. Id. at 162–163. Hail said some drugs have meaning-ful levels in living patients, but not thedrugs in this case. Id. at 163. She testi-fied that if the levels of drugs are mean-ingless in living patients, they are evenless meaningful in dead patients. Id.Moreover, Hail testified people are incor-rect when they imagine a poster in themedical examiner’s office with all of thedrugs known to man and the lethal level ofthose drugs. Id. No such poster exists.Id. In contrast to Grey, Hail stated, ‘‘All Iwant to see is the presence of these drugspostmortem. I don’t care what the levelis.’’ Id.

On cross-examination, Defendant’s coun-sel asked Hail about toxicity levels. Hailstated that although toxicity levels do notmatter, the quantity of pills taken doesmatter. Id. at 181. She said Wirick’shigh tolerance to opiates and opioids fromhis heavy use would not equate to immuni-ty. Id. Defendant’s counsel asked Hail,‘‘Any witness who talks about toxic levelsis just plain wrong; is that your testimo-ny?’’ Id. at 182. Hail said, ‘‘Correct, be-cause they are not a toxicologist. Theydon’t understand that.’’ Id. Hail reached

14. Defendant appeared to understand this inthe district court. In his proposed jury in-struction number 16, he requested that thejury be instructed as follows: ‘‘If you shoulddecide that the opinion of an expert TTT is

outweighed by other evidence, including thatof other ‘expert witnesses’, you may disregardthe opinion in part or in its entirety.’’ Appel-lee’s Supp. App’x, vol. I, 67 (emphasis added).



that conclusion because medical examiners‘‘don’t treat patients in the roles of theliving, so I don’t expect them to under-stand and have the same knowledge that Ihave about what these numbers mean.’’Id. Finally, Hail testified that the drugpoisoning occurred before Wirick devel-oped pneumonia. Id. at 168, 185.

Viewing this evidence in the light mostfavorable to the Government, a reasonablejury could conclude beyond a reasonabledoubt that the oxycodone by itself and thehydrocodone by itself resulted in Wirick’sdeath. Hail testified that the drug levelsof the oxycodone and the hydrocodone aremeaningless. This statement is furthersupported by Grey and Hail’s testimonythat blood samples taken from the heart,such as Wirick’s blood sample, can varyfrom the actual blood toxicity level. Thisis because some drugs can have an effectcalled postmortem redistribution. TrialTr., 41, August 2, 2011. Postmortem re-distribution may cause drugs to becomemore concentrated or less concentrated inheart tissue after death. Id. For exam-ple, Grey testified that hydrocodone’srange of levels between the heart and pe-ripheral areas can vary from a ratio of ‘‘0.6to four.’’ Id. Moreover, the jury heardWirick had taken a large amount of hydro-codone and oxycodone. Although Hail didnot explicitly state the hydrocodone alonecould have killed Wirick or the oxycodonealone could have killed Wirick, the testimo-ny Hail provided, viewed in the light mostfavorable to the Government, could allowthe jury to reasonably infer that the oxyco-done alone caused Wirick’s death and that

the hydrocodone alone caused Wirick’sdeath. At a motion hearing on September21, 2011, Defendant argued Hail’s testimo-ny was ‘‘completely irrational and com-pletely ridiculous.’’ Aplt. App’x 400. Butthe jury had every right to find Hail, aboard certified toxicologist testifying thatblood toxicity levels do not matter, morecredible than Grey or Baden and to disre-gard any testimony it deemed not credible.Accordingly, we conclude no error, plain orotherwise, exists as to the sufficiency ofthe evidence on both counts 1 and 2.15

D.

Next, Defendant contends the districtcourt based its denial of his motion forjudgment of acquittal on improper evi-dence. Specifically, Defendant posits thedistrict court erroneously considered Dr.Frikke’s autopsy report as evidence sepa-rate and apart from Dr. Grey’s testimony.In its written opinion denying the motionfor judgment of acquittal on counts 1 and2, the district court noted the jury heard‘‘testimony’’ from four different doctors asto Wirick’s cause of death, including Dr.Frikke, who was deceased, and Dr. Grey.The district court thus considered Frikke’sautopsy report as ‘‘testimony’’ presented attrial. Defendant states he did not objectto the Government offering Dr. Grey’s ex-pert testimony regarding Wirick’s cause ofdeath because he believed Grey’s opinionand testimony were being offered in lieu ofFrikke’s, not in addition to the conclusionscontained in the autopsy report.16 TrialTr., 32, August 2, 2011 (‘‘Just for the rec-

15. In a later subsection of his opening brief,Defendant re-argues the district court erred indenying his Rule 29 motion because reason-able doubt existed that Wirick’s death result-ed from the medications Defendant pre-scribed. For the precise reasons discussed inthis section, however, we disagree with De-fendant’s re-argument.

16. At a motion hearing after trial, but beforethe district court issued its opinion denyingthe Rule 29 motion on counts 1 and 2, thedistrict court clearly stated ‘‘[Frikke] was oneof the four expert witnesses on the issue.’’Aplt. App’x 402. Rather than counter thedistrict court’s statement, Defendant ad-dressed the contents of the autopsy report.



ord, I have no problem. I think it’s apublic record—the actual report of the ex-amination.’’). Defendant now argues theautopsy report’s admission into evidencepresents a Confrontation Clause issue.

The Government argues that becauseDefendant did not argue in his openingbrief for plain error review, his claim isnow waived. The Government also con-tends any alleged Confrontation Clause is-sue is waived because Defendant affirma-tively stated he had no objection to theautopsy report and did not ask for a limit-ing instruction. In addition, Defendantcross-examined Grey and Hail about theautopsy report’s contents and never ob-jected to the Government’s questionsabout the report.

In his reply brief, Defendant points to aSupreme Court decision issued prior tohis trial in which the court held that fo-rensic lab reports containing a testimonialcertification of fact could not be intro-duced through the live testimony of anoth-er analyst who did not actually performthe test or sign the certification. Bull-coming v. New Mexico, ––– U.S. ––––, 131S.Ct. 2705, 2713, 180 L.Ed.2d 610 (2011).Defendant argues that whether autopsyreports fell under Bullcoming did not be-come clear until the Eleventh Circuit’s de-cision in Ignasiak, where the court heldBullcoming prohibited the admission ofautopsy reports through a person otherthan the actual medical examiner who hadperformed the autopsy. Ignasiak, 667F.3d at 1231. Defendant argues weshould review this issue de novo becauseit presents a pure question of law prem-ised on legal precedent that did not exist

at the time of trial. Alternatively, he ar-gues the autopsy report’s admission satis-fies the requirements of plain error be-cause the report’s admission was clearlyerroneous, and as the only ‘‘opinion’’ testi-mony that supported the Government’stheory on causation as to count 1 and 2,substantially prejudiced Defendant and re-sulted in manifest injustice.

[11] We reject Defendant’s argumentthat he is entitled to relief because of anintervening change in the law. Here, nochange in the law occurred after Defen-dant’s trial. The Supreme Court issued itsopinion in Bullcoming in June 2011. De-fendant’s trial occurred in late July andearly August, 2011. Defendant had theopportunity to object to the admission ofthe autopsy report on the basis of Bull-coming, as the defendant obviously did inIgnasiak. The district court then couldhave ruled on the issue.

Defendant also argues in his reply briefthat the district court committed plain er-ror in admitting the autopsy report. Butthe Government argues we cannot reviewthis forfeited claim because Defendant didnot argue for plain error in his openingbrief. In this Circuit, ‘‘the failure to arguefor plain error and its application on ap-peal TTT surely marks the end of the roadfor an argument for reversal not first pre-sented to the district court.’’ UnitedStates v. Lamirand, 669 F.3d 1091, 1100 n.7 (10th Cir.2012) (citing Richison v. ErnestGrp., Inc., 634 F.3d 1123, 1127–28 (10thCir.2011)). But at what point on appealmust an appellant argue for plain errorand its application? Fortunately we neednot decide that issue today.17 This is be-

17. Because the Government forcefully assertsso many of Defendant’s claims cannot beheard on appeal, we note that Lamirand andRichison do not appear to be inconsistentwith our lengthy history of reviewing forfeitedclaims for plain error. United States v. Teag-

ue, 443 F.3d 1310, 1314 (10th Cir.2006).Rather than creating a new procedural rule,these cases reenforced the principle that anappellant carries the heavy burden of satisfy-ing plain error. United States v. LaHue, 261F.3d 993, 1009 (10th Cir.2001). And if an



cause, even if we assume that error in factoccurred, Defendant cannot demonstratethat the error affected his substantialrights. Cooper, 654 F.3d at 1117 (explain-ing the burden is on the appellant to dem-onstrate an error, that is plain, affects hissubstantial rights, and justice requires theerror to be corrected). Without the ad-mission of the autopsy report, the jury stillhad sufficient evidence to find Defendantguilty on both counts 1 and 2 because ofHail’s testimony. Accordingly, under theplain error standard of review, the districtcourt did not err in admitting the autopsyreport.

E.

Defendant next contends the Govern-ment failed to prove Wirick’s death was a‘‘reasonably foreseeable’’ consequence ofDefendant’s prescribing the controlledsubstances. Defendant posits the lone factthat he knew Wirick overdosed on metha-done in January 2006, only four monthsbefore his death, is not probative of wheth-er Wirick’s death was reasonably foresee-able. In addition, Defendant asserts thedistrict court failed to fully and adequatelyinstruct the jury on proximate cause andthe definition of reasonable foreseeability,which confused the jury and left it todecide what might be adequate proof.

We note other circuits have concludedCongress intended 21 U.S.C. § 841(b)’s‘‘resulting in death’’ language to ‘‘applywithout regard to the principles of proxi-

mate cause or the foreseeability of deathor serious bodily injury.’’ United States v.McIntosh, 236 F.3d 968, 972 (8th Cir.2001); see also United States v. Patterson,38 F.3d 139, 145 (4th Cir.1994) (holdingreasonable foreseeability is not an elementof § 841(b)); United States v. Robinson,167 F.3d 824, 826 (3d Cir.1999) (concluding§ 841(b) does not require proof that adefendant’s actions are the proximatecause of a victim’s death.); United Statesv. Rebmann, 226 F.3d 521, 522, 525 (6thCir.2000) (providing in dicta that the stat-ute, on its face, ‘‘is, in effect, a strictliability statute with respect to the injuryor death of another arising out of thedistribution of drugs’’), overruled on othergrounds by United States v. Leachman,309 F.3d 377, 385 n. 9 (6th Cir.2002);United States v. De La Cruz, 514 F.3d121, 138 (1st Cir.2008) (stating the Govern-ment does not need to prove foreseeabil-ity); United States v. Houston, 406 F.3d1121, 1122–23 (9th Cir.2005) (concludingthe statute does not require the Govern-ment prove death was a foreseeable re-sult); United States v. Webb, 655 F.3d1238, 1254 (11th Cir.2011) (‘‘the plain andunambiguous language of [the statute]contains no foreseeability or proximatecause requirement’’); cf. United States v.Hatfield, 591 F.3d 945, 950–51 (7th Cir.2010) (expressing ‘‘some misgivings aboutinterpreting ‘results from’ in the statute toimpose strict liability,’’ but not deciding

appellant fails to satisfy that burden, we donot develop a plain error argument for theappellant. United States v. DeChristopher,695 F.3d 1082, 1091 (10th Cir.2012). This isentirely consistent with our case precedentand Federal Rule of Criminal Procedure52(b), which allows us to consider a plainerror even though it was not brought to thedistrict court’s attention. But is the adverselyaffected party heard and the adversarial pro-cess served when we allow a plain error argu-ment for the first time in the reply brief?

That the appellee has the opportunity to pro-vide why the appellant’s alleged error is notplain in its response brief may suffice. Theappellant may then argue in his reply briefwhy the error is in fact plain. An appellantcertainly would benefit from a more devel-oped argument if he acknowledged forfeiturein his opening brief, but we do not discountthe possibility that we may consider a plainerror argument made for the first time in anappellant’s reply brief.



the issue because the defendants did notchallenge the interpretation of the statuteas imposing strict liability on them fordeath or injury). Because the Govern-ment requested an instruction on reason-able foreseeability, however, it was re-quired to prove it. Romero, 136 F.3d at1273. And because of the posture of thiscase, we do not opine on whether§ 841(b)’s language contains a foreseeabil-ity or proximate cause requirement.Rather, we first address whether the evi-dence presented at trial was sufficient toshow Wirick’s death was a ‘‘reasonablyforeseeable’’ consequence of Defendant’sprescribing the controlled substances be-fore turning to the jury instruction on thestandard for determining whether Wirick’sdeath ‘‘resulted from’’ the medications De-fendant prescribed.

1.

Defendant contends Wirick’s previousmethadone overdose was irrelevant to thequestion of whether Wirick’s death fourmonths later was reasonably foreseeableand says the Government presented noother evidence to support foreseeability.Defendant argues Wirick never misusedhis opioid medications during the sevenyears he treated Wirick. Defendant fur-ther asserts the methadone overdose wasan anomalous event that did not involvehydrocodone or oxycodone. Defendantpoints to the differences between metha-done on the one hand and hydrocodoneand oxycodone on the other. Defendantalso points out that Dr. Bruce prescribedWirick opioids immediately following theJanuary overdose. Defendant assertsthat, by the Government’s logic, every time

Bruce prescribed to Wirick in the fourmonths following the overdose, Bruceshould have reasonably foreseen that Wir-ick would die from an overdose. Finally,Defendant argues his knowledge of theexclusive agreement between Bruce andWirick does not prove foreseeability.

[12] At trial, the Government askedDefendant whether he was aware Wirickwould binge on his narcotics. Defendantstated he was not. But the jury saw notesfrom Bruce in Wirick’s chart. Those notesindicate Wirick’s wife stated that Wirickwould take his medication in an inconsis-tent manner, often binging to the point offalling off a toilet. Trial Tr., 130, August16, 2011. Defendant admitted that thenotes were in his chart, but said he did notknow Wirick would binge because he didnot read Bruce’s notes ‘‘word for word.’’Id. The jury heard testimony that Wirickattempted to obtain an early refill fromanother doctor in Bruce’s office, but thatdoctor refused. Defendant saw Wirick inMay even though Wirick was on Defen-dant’s do not see list. Defendant said heagreed to see Wirick because Bruce wasout of town. Instead of prescribing athree-day prescription, the amount of timeBruce was to remain out of town, Defen-dant wrote Wirick a thirty-day prescrip-tion without contacting Bruce’s office.18

Id. at 131. Based on the information inDefendant’s chart showing that Wirickbinged on his medication, the fact thatWirick desired an early refill, and anotherdoctor in Bruce’s practice would not pre-scribe Wirick additional medication, thejury could reasonably conclude beyond areasonable doubt that Wirick’s death from

18. Although Defendant testified he had pre-scribed Wirick a 30–day supply, he now ar-gues on appeal that he was mistaken becausethe DOPL report indicates that he prescribedWirick a 10–day supply of oxycodone and a15–day supply of hydrocodone. Aplt. App’x

12–13. Because Defendant testified as such,the jury could consider his statement. Wehave no power to change the record to suitDefendant’s recollection, which is not whathe testified to at trial.



Defendant’s prescriptions was reasonablyforeseeable.

2.

Defendant finds fault with two parts ofthe jury instructions. Defendant assertsthe district court did not fully inform thejury of the law regarding proximate causeand argues the instruction caused confu-sion because the district court failed todefine ‘‘reasonably foreseeable conse-quence.’’

Once again, the Government argues De-fendant waived his challenge to the juryinstructions. Jury instruction 22 instruct-ed the jury on counts 1 and 2. At amotion hearing on August 8, the districtcourt requested the parties assist the courtin crafting the instruction, ‘‘[n]either ofyou gave me much by way of defining tothe jury what death resulting from the useof the drugs means. If you want to takeyour hand at that, I would really appreci-ate it.’’ Appellee’s Supp. App’x vol. I, 165.The court continued, ‘‘I was left with thefeeling that the resulting from languageshould be perhaps defined a little more, alittle better for the jury.’’ Id. at 166.Four days later, the district court men-tioned to the parties that it had providedthem with a set of proposed instructions,including the two instructions for which ithad asked for help. The district courtcontinued to ask for assistance: ‘‘I reallywould appreciate some help on [instruction22] as early as possible.’’ Trial Tr., 83,August 12, 2011. After Defendant’s attor-ney asked for clarification, the districtcourt responded: ‘‘If you’re happy withthe one we have got, then I am too. I justhope you take another look at it from theeyes of a juror and ask does this makesense to me? If you’re both happy withthe language, the reasonably foreseeablestandard, then I am.’’ Id. at 84.

[13] Defendant forfeited this issue.The district court, on multiple occasions,requested assistance in drafting the juryinstruction at issue. Defendant’s failure toobject to the instruction, especially wheninvited by the district court to assist in thedrafting the instruction, results in forfei-ture of the issue. Defendant did not arguefor the plain error standard in his openingbrief or in his reply brief. Defendant hasforfeited his challenge to the jury instruc-tions and we will not craft a plain errorargument for him on appeal. UnitedStates v. DeChristopher, 695 F.3d 1082,1091 (10th Cir.2012); see also UnitedStates v. McGlothin, 705 F.3d 1254, 1267(10th Cir.2013) (concluding appellant for-feited argument on appeal where appellantdid not argue for the plain error standardin either of his briefs). Accordingly, wewill not review Defendant’s waived chal-lenge to jury instruction 22.

IV.

[14, 15] Defendant next challenges thetestimony or Dr. Hail, arguing the districtcourt erroneously permitted her to offerexpert testimony. Pursuant to FederalRule of Evidence 702, a district court must‘‘assess proffered expert testimony to en-sure it is both relevant and reliable.’’United States v. Avitia–Guillen, 680 F.3d1253, 1256 (10th Cir.2012) (citing Daubertv. Merrell Dow Pharms., Inc., 509 U.S.579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993)). The district court must ‘‘deter-mine whether the expert is qualified byknowledge, skill, experience, training, oreducation to render an opinion.’’ Id. (in-ternal quotation marks omitted). Once theexpert is deemed sufficiently qualified,then ‘‘the court must determine whetherthe expert’s opinion is reliable by assessingthe underlying reasoning and methodolo-gy.’’ Id. The district court ‘‘must ade-quately demonstrate by specific findingson the record that it has performed its



duty as a gatekeeper’’ when faced with aparty’s objection. Id. Defendant correct-ly notes we usually review de novo wheth-er the district court applied the properstandard in admitting expert testimony.Id. But where ‘‘a party fails entirely toobject to expert testimony at or beforetrial, we review only for plain error.’’ Id.

Defendant first challenges Hail’s quali-fications, asserting that Hail lacked ex-pertise to meaningfully review all of thematerials to make a cause of death deter-mination because she is a toxicologistrather than a forensic pathologist. Sec-ond, Defendant challenges the methodolo-gy Hail used to reach her opinion. De-fendant posits Hail’s opinions cast seriousdoubt on whether she based them on areview of the autopsy report or on ‘‘sub-jective belief and unsupported specula-tion.’’ Third, Defendant contends the dis-trict court improperly allowed Hail togive a legal opinion and testify to an ulti-mate issue: that Wirick’s death resultedfrom the use of controlled substances.

Once again, the Government asserts De-fendant waived this issue on appeal be-cause Defendant did not object below anddoes not argue plain error on appeal. Ad-ditionally, the Government argues theFederal Rules of Evidence allow an expertto testify on an ultimate issue and, as aboard certified toxicologist, Hail possessedthe necessary training and experience toopine on the relationship between thedrugs and Wirick’s death. In his replybrief, rather than argue for plain errorreview, Defendant asserts his belief thatde novo review applies because he ‘‘actual-ly made these arguments on several occa-sions’’ and ‘‘challenged Dr. Hail’s qualifica-tions and methodology extensively oncross-examination and later in his Rule 29Motion.’’

To determine whether Defendant object-ed to Hail’s qualifications and methodolo-

gy, we again turn to the record. On Au-gust 1, the day before the Governmentcalled Hail to testify, the parties gatheredin the district court judge’s chambers toaddress objections. Defendant started outby arguing ‘‘it is my recollection that thegovernment represented that [Hail] wasnot going to testify to the cause of death,but because she is going to be testifying tothe cause of death, we believe it is cumula-tiveTTTT’’ Aplt. App’x 344. Specifically,Defendant believed Hail’s testimony wouldbe cumulative to Dr. Grey’s testimony. Id.at 346. Defendant argued Hail’s testimo-ny would be ‘‘almost verbatim the exactlanguage that is contained in the autopsyreport TTT that the combination of thosetwo drugs was the cause of death.’’ Id.Defendant also argued Hail’s testimonywould be cumulative to Dr. Hare’s testimo-ny regarding the composition of drugs andtheir interaction with one another. Id. at350. At the hearing, the district courtruled that Hail’s testimony would not becumulative to either doctor. The districtcourt reasoned that Hail would testify thatthe pneumonia did not contribute to thedeath, whereas Grey would testify that itdid contribute. Hare did not offer anopinion as to how the drugs that Wiricktook interacted in connection with hisdeath. But, the district court stated itwould be inclined to sustain an objection ofcumulativeness if Hail simply parroted an-other expert. The district court advisedDefendant: ‘‘So be ready for both ofthem.’’ Id. at 352.

The next day at trial, Defendant firstobjected to the Government asking ‘‘Doc-tor, could you describe the purpose ofopioids?’’ Trial Tr., 151, August 2, 2011.Defendant believed the question wouldlead to testimony cumulative to Hare’s tes-timony. Next, Defendant objected toHail’s partial answer to the question of‘‘What’s a benzo?’’ Defendant objected to



the narrative, stating Hail had moved on toother areas. Id. at 153. The Governmentproceeded to ask Hail what a ‘‘synergistic’’effect was. Defendant objected, statingthat the jury had heard about this topicfrom Grey earlier in the day. Id. OnceHail began talking about blood taken fromthe heart, Defendant objected to testimonyregarding ‘‘heart blood’’ because it wouldbe the third time it was discussed. Id. at164. Defendant next objected to a ques-tion asking Hail if she knew how manypills Wirick consumed between May 3 andMay 6. When Hail responded she did notmemorize how many were missing, Defen-dant stated the question called for specula-tion unless she had a foundation that shewas with Wirick when he took the pills.Id. at 167. Finally, on cross examination,Defendant asked Hail whether she had anyformal training in pathology. Id. at 170.Hail stated she did not. Defendant alsoasked whether she examined the slidesthat went along with the autopsy report.Id. at 174. She stated she had not becauseshe read the autopsy report.

We must note two important instanceswhere Defendant did not object. First,the Government offered Hail as an expertin emergency medicine and toxicology.Trial Tr., 145, August 2, 2011. Defendantdid not object. The district court stated,‘‘Okay. Proceed with your next question.I usually don’t do anything to qualify ex-perts.’’ Id. Second, the Governmentasked Hail, ‘‘Based upon your review of allthis information that you gathered con-cerning David Wirick’s death, did you forman opinion that his drug use resulted indeath?’’ Id. at 160. Hail answered ‘‘yes.’’Id. The Government then asked ‘‘What isyour opinion.’’ Id. Defendant, again, didnot object.

In support of his argument that he ob-jected, Defendant also points to his memo-randum in support of his motion for judg-

ment of acquittal in which he cited Hail’stestimony that she did not review the mi-croscopic slides of Wirick’s lungs or hearttissue and that she would not know whatshe was looking at in the slides becauseshe is not a pathologist. Aplt. App’x 150.Defendant also cited her testimony thatthe combination of one oxycodone, one hy-drocodone and one Valium could causedeath and that she disagreed that pneumo-nia was a contributing factor in Wirick’sdeath because people seek out medical at-tention when they have pneumonia. Id.A close examination of Defendant’s argu-ment in his Rule 29 motion shows, howev-er, that he did not challenge the districtcourt’s gatekeeping function. In discuss-ing why he believed the evidence to beinsufficient, Defendant referenced the ‘‘ex-pert’’ opinion of Hail, arguing this ‘‘other’’expert weakened Frikke’s opinion aboutthe cause of death. Id. at 155. Lastly,Defendant brings our attention to the post-trial motion hearing on Defendant’s motionfor judgment of acquittal on counts 1 and2. At that hearing, Defendant arguedHail’s testimony was the only testimonythat could lead anybody to believe thatWirick’s blood toxicity level was outside ofa therapeutic level. Defendant asserted:

Dr. Hail’s explanation is completely irra-tional and completely ridiculous, becausewhat she really said was one pill, thecombination of Oxycodone, Hydrocodoneand Valium TTT one pill would kill you.She said even more. She said I didn’tcare about the therapeutic levels, be-cause her opinion was that [ ] kills you.That therapeutic dosage of that one pilland those three medications killsyouTTTT She is completely contradictedby the evidenceTTTT Moreover, Dr.Hail TTT was the only one that said TTT

the wonderfully interesting expert opin-ion that the reason why he didn’t die



from pneumonia is because people whohave pneumonia only die in hospitals.

Aplt. App’x 400–01.

Our detailed record review reveals thatDefendant never challenged Hail’s qualifi-cations or methodology. At trial, Defen-dant objected to what he believed to becumulative testimony, a narrative answer,and an answer based on speculation. Butnotably absent during the Government’sdirect examination of Hail is an objectionto the district court qualifying Hail as anexpert or her qualifications or methodolo-gy. During cross examination, Defendantquestioned Hail’s qualifications and ques-tioned her methodology, but never sug-gested the jury could not consider hertestimony to be that of an expert. Ques-tioning an expert about her methodologyand qualifications on cross examination isnot the same as objecting to her beingqualified as an expert. Defendant did notmake a belated objection to Hail’s qualifi-cations as an expert during his cross exam-ination. Juries often hear dueling experttestimony, and in this case, the jury choseto credit Hail’s testimony.

After trial, in both his memorandum andat the motion hearing, Defendant ques-tioned Hail’s methodology and qualificationto give expert testimony because she wasnot a pathologist. But Defendant did notchallenge the district court’s decision toallow Hail to give expert testimony. Rath-er he argued a pathologist, instead of atoxicologist, would be the appropriate per-son to provide testimony as to cause ofdeath and that no reasonable jury couldaccept Hail’s testimony. This argumentdoes not go to Hail’s fitness to testify as anexpert, but to the sufficiency of the evi-dence to convict Defendant on Counts 1and 2.

[16] Rather than alternatively arguefor plain error in his reply brief, Defen-dant asserts he objected on the basis of

cumulativeness and that ‘‘resulting indeath’’ and ‘‘cause of death’’ were thesame. Based on our record review, weagree with Defendant that he objectedbased on cumulativeness and asserted thatthe ‘‘resulting in death’’ and ‘‘cause ofdeath’’ terminology represented a ‘‘distinc-tion without a difference,’’ but Defendantdid not object to Hail’s testimony for thereasons he articulates on appeal. Our caselaw routinely reviews these forfeitedclaims for plain error. Avitia–Guillen,680 F.3d at 1256. But we also know thatwe do not craft plain error arguments forappellants on appeal. DeChristopher, 695F.3d at 1091. We easily identify the quag-mire: What is the extent of an appellant’sburden to demonstrate plain error? Needhe only provide us the facts on which wecould find plain error or does he need toprovide us an argument incorporating thecorrect legal standard? These are certain-ly interesting questions, but this case isnot the proper vehicle to decide the issue.For in this case, the district court’s deci-sion to qualify Hail as an expert and allowthe jury to consider her testimony doesnot rise to plain error.

Furthermore, because Defendant didnot object to Hail’s methodology or qualifi-cations, the district court was not requiredto make explicit findings. Avitia–Guillen,680 F.3d at 1260. ‘‘So we are left to lookonly for some obvious error in the court’simplicit finding that [Hail’s] methods werereliable’’ and Hail was qualified to testifyas an expert. Id. The district courtheard Hail testify she is board certified intoxicology, a lecturer to residents, medicalstudents, and pharmacologists doing a ro-tation in medical toxicology, and an authorof articles in textbooks. Trial Tr., 141–42,August 2, 2011. Hail testified toxicology isthe study of poisons and that as a toxicolo-gist, she treats overdoses and directs otherdoctors on how to manage overdoses. Id.



at 137, 139–40. Hail admitted she was nota pathologist, which is why she did notreview the autopsy slides. Instead, sheoffered an opinion on the drugs in Wirick’ssystem. Nothing in the record indicatedHail lacked the necessary training and ex-perience to provide testimony on the rela-tionship between drugs or poisons andWirick’s death.19 The district court didnot plainly err in its implicit determinationthat Hail’s testimony was based on ‘‘reli-able principles and methods’’ that were‘‘reliably applied.’’ Fed.R.Evid. 702(c), (d).

To the extent Defendant challenges thedistrict court’s reliance on Hail’s experttestimony in ruling on his Rule 29 motion,we disagree with Defendant’s position.The district court allowed, with no objec-tion, Hail to testify as an expert on toxicol-ogy. The jury could reasonably rely onher testimony as a board certified toxicolo-gist. Defendant had the opportunity toquestion Hail and to present his own ex-pert to the jury. Defendant also had theopportunity to counter Hail’s testimonythat a toxic level does not exist throughother experts. The jury heard the evi-dence and made a rational decision basedon the testimony presented at trial.

[17] Defendant also argues the districtcourt improperly allowed Hail to give alegal opinion and testify to an ultimateissue, specifically, that Wirick’s death re-sulted from or, in other words, Wirick’scause of death was because of, controlledsubstances. Again, because Defendant did

not object to Hail’s use of the phrase‘‘cause of death’’ or ‘‘death resulted from’’at trial, we review his claim for plain er-ror.20 United States v. Schneider, 704F.3d 1287, 1293 (10th Cir.2013). FederalRule of Evidence 704(a) allows ‘‘an expertto opine on an ‘ultimate issue’ to be decid-ed by the trier of fact.’’ Schneider, 704F.3d at 1293 (testifying doctor opined thatthe defendant had engaged in health carefraud resulting in death). That expert,however, must explain the basis for heropinion and not ‘‘simply tell the jury whatresult it should reach.’’ Id. In this case,Hail did not tell the jury Defendant wasguilty. Instead, she explained her obser-vation based on the evidence in the case.Accordingly, we find no error at all in thedistrict court’s admission of Hail’s testimo-ny regarding Wirick’s cause of death.

V.

Defendant next asserts the district courtcommitted prejudicial error in admittingGovernment Exhibit 133, a compilation ofcharts showing the annual rankings ofUtah’s top ten issuers of hydrocodone andoxycodone prescriptions from 2005through 2009. The charts reveal Defen-dant wrote the largest number of hydroco-done prescriptions in Utah from 2005through 2008. In 2009, Defendant rankedthird. Defendant was the seventh highestissuer of oxycodone prescriptions in 2005,fourth in 2006, 2007, and 2009, and secondin 2008. Defendant contends this informa-tion was not relevant and any probative

19. Defendant contends that even if Hail hadbeen properly qualified to opine as to Wirick’scause of death, the district court should havenonetheless excluded her testimony as cumu-lative to Grey’s. This argument, of course, isincorrect. As noted by Defendant, only Hailcompletely excluded pneumonia as a factor inWirick’s death.

20. Defendant did not object because Hail wasgoing to testify as to an ultimate issue. The

objection was based on the cumulativeness ofthe testimony to that of Dr. Grey and theautopsy report. Not only did Defendant failto object to this line of questioning, Defendantasked questions using the phrase ‘‘cause ofdeath’’ on Hail’s cross examination. TrialTr., 180, August 2, 2011 (‘‘Valium in Mr.Wirick’s system is significant, is it not, whenyou are talking about the cause of death?’’).



value was substantially outweighed by itsunfairly prejudicial impact and risk of con-fusing and misleading the jury. Defen-dant asks for a new trial based on theadmission of this exhibit.

At trial, the district court engaged in alengthy discussion with counsel regardingthe exhibit. The Government essentiallyargued Defendant ‘‘opened the door’’ tothe admission of Exhibit 133 by raising thesubject in his opening statement when heasserted he practiced in a small town—‘‘hiscommunity’’—and he did not want peoplesuffering from chronic pain to have totravel to Logan, Ogden, or Salt Lake City.Trial Tr., 47, July 20, 2011. The Govern-ment desired to respond to this argumentby pointing out Defendant was the numberone provider in the entire state. Trial Tr.,102, July 21, 2011. The district court un-derstood and acknowledged the potentialRule 403 problem: ‘‘The unfair prejudicewould come from the jury jumping to theconclusion TTT if he is the biggest providerof this drug in the state TTT then he mustbe guiltyTTTT he must be bad.’’ Id. at 104.The district court further told the Govern-ment: ‘‘You’re accusing him because he isthe number one provider of hydrocodonein the state, that he must be prescribing itnot for legitimate medical purposes.’’ Id.at 105. The court pressed the Govern-ment: ‘‘Do you agree that the reason orthe main aspect of the evidence that youwant to come in is his ranking? TTT Isthat the most important aspect of it?’’ Id.at 106–07. The Government responded, ‘‘Ithink so. It is the volume compared to therest of the state.’’ Id. at 107. After hear-ing from the parties, the district court saidthe Government’s best argument was thatExhibit 133 should be admitted in re-sponse to Defendant’s opening statementdepicting Defendant as a one-doctor prac-tice who did not want ‘‘folks’’ in his com-munity to travel to receive treatment forchronic pain. Id. at 109. Ultimately, the

district court allowed the testimony for thereasons articulated by the Governmentand explicitly stated that the probativevalue was not substantially outweighed bythe danger of unfair prejudice. Id. at 114.

[18] A district court may generally ad-mit relevant evidence. Fed.R.Evid. 402.Rule 403, however, allows a district courtto exclude relevant evidence if its proba-tive value ‘‘is substantially outweighed by adanger of one or more of the following:unfair prejudice, confusing the issues, mis-leading the jury, undue delay, wastingtime, or needlessly presenting cumulativeevidence.’’ Fed.R.Evid. 403. ‘‘In deter-mining whether evidence is properly ad-mitted under Rule 403, we consider (1)whether the evidence was relevant, (2)whether it had the potential to unfairlyprejudice the defendant, and (3) whetherits probative value was substantially out-weighed by the danger of unfair preju-dice.’’ United States v. Cerno, 529 F.3d926, 933 (10th Cir.2008). Our abuse ofdiscretion review ‘‘affords the district courtconsiderable discretion in performing theRule 403 balancing test’’ because ‘‘districtcourt judges have front-row seats duringtrial and extensive experience ruling onevidentiary issues.’’ Id. at 935–36 (inter-nal quotation marks omitted).

[19] We first address relevance. Thedistrict court ruled the exhibit was rele-vant because, if admitted, the exhibitwould have an impact on the trial. Weagree the exhibit was relevant. The Gov-ernment charged Defendant with unlawfuldistribution of hydrocodone and oxyco-done. The Government had to prove De-fendant stepped outside his role as a doc-tor and became a criminal drug pusher.The charts certainly painted a picture ofDefendant’s practice as a pain manage-ment physician. Moreover, ‘‘a party whoraises a subject in an opening statement



‘opens the door’ to admission of evidenceon that same subject by the opposing par-ty.’’ United States v. Chavez, 229 F.3d946, 952 (10th Cir.2000). Defendant ex-plained why his practice shifted to painmanagement in his opening statement—hedid not want to see members of his com-munity travel to other parts of the state toreceive treatment for pain. Exhibit 133 isrelevant in light of this statement.

[20] We acknowledge the possibilitythat the admission of the exhibit unfairlyprejudiced Defendant. ‘‘Evidence is un-fairly prejudicial if it makes a convictionmore likely because it provokes an emo-tional response in the jury or otherwisetends to affect adversely the jury’s attitudetoward the defendant wholly apart from itsjudgment as to his guilt or innocence ofthe crime charged.’’ United States v.Leonard, 439 F.3d 648, 652 (10th Cir.2006)(internal quotation marks omitted). Asmentioned above, the district court ex-pressed concern that admission of Exhibit133 could lead the jury to base its decisionof guilt or innocence not on whether De-fendant unlawfully prescribed to each ofthe indictment patients, but instead on De-fendant’s ranking as the number one phy-sician prescribing hydrocodone in Utah.

By allowing the jury to hear testimonyregarding Exhibit 133, the district courtcreated a risk that the jury’s decisionwould be improperly affected by the factthat Defendant prescribed so many opioidprescriptions. The district court acknowl-edged the possibility that the jury could beconfused by the admission of the chart andbelieve that because Defendant was thenumber one provider of hydrocodone inUtah, he must be prescribing hydrocodonenot for a legitimate medical purpose to theindictment patients. Although the exhibitwas undoubtedly prejudicial, that alone‘‘does not necessarily get the defendant

over his evidentiary hurdle.’’ Cerno, 529F.3d at 935.

[21] Finally, we consider whether thedistrict court abused its discretion in con-cluding that the probative value of theexhibit was not substantially outweighedby the risk of unfair prejudice. ‘‘UnderRule 403’s balancing test, it is not enoughthat the risk of unfair prejudice be greaterthan the probative value of the evidence;the danger of that prejudice must substan-tially outweigh the evidence’s probativevalue.’’ Id. at 935. In balancing, we ‘‘givethe evidence its maximum reasonable pro-bative force and its minimum reasonableprejudicial value.’’ Id.

Defendant directs us to United States v.Jones, 570 F.2d 765 (8th Cir.1978). InJones, the defendant physician appealed aconviction for distributing a Schedule IIcontrolled substance without a legitimatemedical purpose and outside the usualcourse of professional practice. The Gov-ernment indicted Defendant on two countsonly. The jury convicted Jones of onecount, but acquitted him on the other. Tobuttress its case against Jones, the Gov-ernment introduced 478 prescriptions is-sued to patients over a 20–month timeperiod. The Eighth Circuit concluded theevidence was relevant, but should havebeen excluded under Rule 403. Id. at 768.The court stated:

[T]he Government sought to implywrongdoing on the physician’s part fromthe quantity of the prescriptionsTTTT

The evidence lacked substantial proba-tive force upon the issue of impropermedical practice in the transactionscharged, yet it could have led the jury tospeculate that the quantity of prescrip-tions alone established wrongful conductby Dr. Jones.

Id. at 769.

The Government distinguishes Jones byarguing the evidence in this case relates to



Defendant’s ranking in connection withdrugs that were charged in the indictmentand the exhibit did not include informationfor years outside of the charged crimes.The Government cites two out of circuitcases. In United States v. Merrill, 513F.3d 1293, 1303 (11th Cir.2008), the Elev-enth Circuit said, ‘‘A jury may considerprescription data sets outside those specifi-cally charged in the indictment to deter-mine whether a physician has exceeded thelegitimate bounds of medical practice andas evidence of a plan, design, or scheme.’’(internal quotation marks omitted). Simi-larly, in United States v. Harrison, 651F.2d 353, 355 (5th Cir.1981), the FifthCircuit held that the jury was not limitedto considering only charged prescriptionsin considering whether the defendant ex-ceeded the legitimate bounds of medicalpractice. The court concluded ‘‘[p]rescrip-tions issued at other times were admissibleas evidence of plan, design or scheme.’’Id.

The cases cited by the Government areinapplicable in this case. The Fifth Cir-cuit’s conclusion in Harrison that the oth-er prescriptions were admissible was notbased on Rule 403 balancing. Rather, itappears to be based on Rule 404(b), whichprohibits evidence of other acts ‘‘to prove aperson’s character in order to show that ona particular occasion the person acted inaccordance with the character.’’ Fed.R.Evid. 404(b)(1). The Rules, however,allow evidence of other acts for anotherpurpose, such as proving ‘‘plan.’’ Fed.R.Evid. 404(b)(2). In this case, Defendantdid not object based on Rule 404(b) andlikewise did not raise the issue on appeal.

Merrill, however, did involve an objec-tion based on Rule 403. But the Govern-ment’s quote from Merrill involved analy-sis regarding Rule 404(b). As to Rule 403,the court pointed out that in addition tocharging the defendant physician in Mer-

rill with unlawful prescribing, the Govern-ment also charged the defendant with de-vising a scheme to defraud Medicaid andother insurance providers. Merrill, 513F.3d at 1301. And, as part of that scheme,the Government alleged the defendant pre-scribed excessive and inappropriate quan-tities and combinations of controlled sub-stances to patients outside the usualcourse of professional practice. In itsRule 403 balancing analysis, the court stat-ed that the summary of other prescriptionswas relevant to prove the defendant pre-scribed excessive and inappropriate quan-tities and combinations of controlled sub-stances and that in doing so he actedoutside the usual course of professionalpractice. The court noted the only waythe Government could prove this part ofthe scheme was to present evidence on thequantities themselves and then comparingthose quantities to the relevant norm.The court also stated the summary wasrelevant because it raised an inference ofexcessiveness and impropriety and becausethe number of drugs being prescribed toeach patient and the combination of drugsbeing prescribed to each patient raised aninference of inappropriate and excessiveconduct. Because, in this case, the Gov-ernment did not have to prove a scheme todefraud involving excessive amounts ofdrugs, Merrill is inapposite.

[22, 23] Likewise, this case is not anal-ogous to Jones, but for reasons other thanthose the Government listed in its brief.Unlike the defendant in Jones, Defendant‘‘opened the door’’ to the admission of Ex-hibit 133. We stress that this is a closequestion, but we do not decide it in thefirst instance. Under the applicable stan-dard of review, we ask only whether thedistrict court abused its discretion. Al-though we agree with the reasoning of theEighth Circuit and believe that, under theEighth Circuit’s facts, the probative value



of an exhibit like Exhibit 133 would havebeen substantially outweighed by the dan-ger of unfair prejudice, we believe thedistrict court did not abuse its discretion inadmitting Exhibit 133 under the facts ofthis case.21 Obviously, Defendant’s open-ing the door makes the exhibit no lessprejudicial and capable of misleading thejury. But the opening of the door in theopening statement makes Exhibit 133more probative. Defendant made hisstatement about why his practice shiftedfrom orthopedic surgery to pain manage-ment in his opening statement. Duringthe exchange with the judge regardingadmission of Exhibit 133, Defendant char-acterized his opening statement in the fol-lowing manner:

‘‘[W]hat I said was Dr. MacKay[,] be-cause of the community that he was in,and the fact that he didn’t want folks togo far away, and he had these chronicpain patients that he thought it wasappropriate to continue to treat them.That is what I said. It may very well bethat if you treat that geographic basis inBox Elder County, you may very well benumber one. I don’t think anyone reallyknows thatTTTT Who knows what itmeans. I really think that that is exact-ly where we’re going to be that he isnumber one, therefore, he is guilty.

Trial Tr., 110–11, July 21, 2011. Evenwith Defendant’s ‘‘clarification’’ of his

opening statement, Defendant placed inissue his role as a doctor to the communityof Box Elder County. Because of theadditional probative value of the exhibitfrom Defendant’s opening statement, wecannot hold the district court abused itsdiscretion in conducting its Rule 403 analy-sis.

VI.

Defendant next asserts his 20–year sen-tence violates the Eighth Amendment’sguarantee not to be subject to excessivesanctions because the harshness of thepenalty outweighs the gravity of the of-fense. Defendant’s reasoning, however, isbest described as a Fifth Amendment dueprocess argument. Defendant contendsthe Controlled Substances Act provides for‘‘radically different penalties’’ for identicalconduct, dependent only on the schedule ofthe unlawfully prescribed drug. This isbecause both hydrocodone and oxycodonein their ‘‘pure forms’’ are Schedule IIdrugs, but hydrocodone ‘‘mixtures,’’ suchas Lortab (hydrocodone and acetamino-phen), are Schedule III drugs. No similarprovision exists for oxycodone mixtures.In application, Defendant’s conviction oncount 1, for the oxycodone mixture, aSchedule II drug, mandates a mandatoryminimum sentence of 20 years. 21 U.S.C.§ 841(b)(1)(C). But Defendant’s convic-tion on count 2, for the hydrocodone mix-ture, a Schedule III drug, carries no man-

21. Even if the district court had erred inadmitting Exhibit 133, the error was harm-less. We render judgment ‘‘after an examina-tion of the record without regard to errors ordefects which do not affect the substantialrights of the parties.’’ 28 U.S.C. § 2111; seealso Fed.R.Crim.P. 52(a) (‘‘Any error, defect,irregularity, or variance that does not affectsubstantial rights must be disregarded.’’). Adistrict court’s ‘‘decision whether to admit orexclude evidence, is considered harmless un-less a substantial right of a party is affected.’’United States v. Charley, 189 F.3d 1251, 1270(10th Cir.1999) (internal quotation marks and

brackets omitted). ‘‘An error affects the sub-stantial rights of a party if it had a substantialinfluence on the outcome or which leaves onein grave doubt, as to whether it had sucheffect.’’ United States v. Espinoza, 244 F.3d1234, 1240 (10th Cir.2001) (internal quotationmarks and brackets omitted). In conductingthis analysis, we review the record as awhole. Id. at 1241. After examining thetotality of the record, our above discussionconcludes the jury had sufficient evidence toconvict Defendant on each count without con-sidering Exhibit 133.



datory minimum sentence, but instead hasa maximum sentence of 15 years. 21U.S.C. § 841(b)(1)(E)(i). Defendant ar-gues the disparate scheduling between hy-drocodone mixtures and oxycodone mix-tures is arbitrary and creates nonsensicalsentencing disparities. Defendant arguesthe Controlled Substances Act’s legislativehistory and the relative case law do notreveal any rational explanation as to why aphysician convicted of unlawfully prescrib-ing an oxycodone mixture has committed asubstantially more egregious crime than aphysician convicted of unlawfully prescrib-ing a hydrocodone mixture.

Unsurprisingly, the Government argueswaiver. First, the Government assertsDefendant’s Eighth Amendment argumentis inadequately briefed, and we should notconsider it. Second, the Governmentnotes, to the extent Defendant contends aFifth Amendment due process violation oc-curred, the argument on appeal is differentfrom his due process argument to the dis-trict court. Because the argument is al-legedly different, and because Defendantdoes not argue for plain error on appeal,the Government argues we should not con-sider the matter.

The Government correctly states Defen-dant did not raise either the EighthAmendment issue or the Fifth Amendmentissue in his Rule 29 motion. Two daysbefore sentencing, Defendant filed a docu-ment entitled ‘‘position of party with re-spect to sentencing factors.’’ Appellee’sSupp. App’x Vol. I, 109. Defendant raised,for the first time, four reasons why 21U.S.C. § 841 is unconstitutional as applied.Id. at 114. One argument asserted§ 841(b)(1)(C)’s mandatory minimum sen-tence violates the Eighth Amendment be-cause the 20 year sentence is dispropor-tionate to the crime committed. Anotherof those arguments was that the statuteviolates the Fifth Amendment by making

an arbitrary and irrational distinction be-tween oxycodone and hydrocodone. Id. at116. Defendant argued hydrocodone andoxycodone are substantially similar drugs,used for the same purposes, and causesimilar effects. Id.

At the sentencing hearing, the districtcourt pointed out to Defendant that hehad not previously argued the disparitybetween the hydrocodone and oxycodonemade the Controlled Substance Act uncon-stitutional as applied to him. Defendant’scounsel responded, ‘‘[t]hat’s true, YourHonor.’’ Id. at 210. The district courtstated Defendant’s argument ‘‘renews arequest that [the district court] grant [De-fendant’s] motion for a judgment of acquit-tal on Counts 1 and 2.’’ Id. The courtsaid that it had previously ruled on themotion, without having the benefit of see-ing Defendant’s new arguments. Defen-dant responded he did not have a reason‘‘to advance further legal argument withrespect to TTT the rationality that Con-gress drew between hydrocodone and oxy-codone with respect to the disparity of thesentences that are required with respectto Count 2 as opposed to the minimummandatory of Count 1.’’ Id. at 210–11.Defendant stated he did not want to ad-vance new arguments until the districtcourt ruled on the Rule 29 motion. Thedistrict court then expressed concern thatDefendant began his sentencing argumentacknowledging the district court has nodiscretion under the statute, but ‘‘later[Defendant will] say [the district court] re-jected [his new] arguments, and then [De-fendant will] raise that up with the Courtof Appeals as if [the district court] hadtime to address them.’’ Id. at 211. Per-ceptive. Despite this reservation, the dis-trict court allowed Defendant to addressthe new arguments. Defendant’s counselthen stated,



‘‘I was going to attempt to addressthem, but I really do think that we arein a position where the minimum man-datory right now is the point of therealm in light of the Court’s ruling.And I think that that is really a sen-tence that very few people in this court-room think is proportionate when youconsider the nature of the situation wehave here and the realities of [Defen-dant] as a human beingTTTT And thequestion of the Eighth Amendment isproportionalityTTTT We believe that a20–year sentence in this case is essen-tially a death sentence for [Defendant],could not possibly be proportionate giv-en all the circumstances and facts of thisparticular criminal caseTTTT Moreover,as the Court well knows, the other argu-ment was that if [Defendant] had notprescribed Percocet for Mr. Wirick,then the Court would be put in theposition where there would be no appli-cation of the minimum mandatory. Andthe maximum under Lortab or hydroco-done is up to 15 years. There is norational distinction that I think medical-ly you can make, politically you couldmake, societally you could make be-tween Lortab and Percocet when itcomes to prescribing. That’s irrationaluse of legislative power, which we sug-gest is a violation of equal protec-tionTTTT

Id. at 212, 214–15, 217.

The district court never ruled explicitlyon the new arguments. The district courtreferenced the statute, then stated, ‘‘I haveno discretion here. The sentence is 20years imprisonmentTTTT Congress hasimposed this law, not me.’’ Id. at 262.

Although Defendant does not explicitlyargue in his opening brief that a due pro-cess violation occurred, he does renewboth his Fifth Amendment and EighthAmendment argument under the same

heading. And after reviewing the record,the Government’s argument that Defen-dant waived the argument on appeal ispatently incorrect. As to the FifthAmendment, to the district court, Defen-dant argued the Controlled Substances Actwas unconstitutional as applied because heprescribed Lortab, a Schedule III sub-stance, and Percocet, a Schedule II sub-stance. Defendant argued those drugs areessentially the same, yet have irrationallydifferent penalties. On appeal, Defendantrefined his argument to specify that hydro-codone mixtures are Schedule III sub-stances and oxycodone mixtures areSchedule II substances. Although Defen-dant improved his terminology on appeal,Defendant’s as applied challenge to thestatute has not changed. As to the EighthAmendment, Defendant argues his sen-tence violates that amendment’s guaranteenot to be subject to excessive sanctionsbecause the harshness of the penalty out-weighs the gravity of the offense.

The actual waiver question before us iswhether Defendant waived his EighthAmendment and Fifth Amendment argu-ments when he stated, ‘‘I was going toattempt to address them, but I really dothink that we are in a position where theminimum mandatory right now is the pointof the realm in light of the Court’s ruling.’’In light of the district court’s decision notto rule on the new arguments, perhaps thedistrict court thought Defendant concededthe argument. But out of an abundance ofcaution, we will first review Defendant’sEighth Amendment issue before address-ing Defendant’s Fifth Amendment issue.

A.

[24] In this Circuit, ‘‘[i]n general, asentence within the limits imposed by stat-ute is neither excessive nor cruel and un-usual under the Eighth Amendment.’’United States v. Delacruz–Soto, 414 F.3d



1158, 1168 (10th Cir.2005). Here, Defen-dant’s sentence of 20 years was at thestatutory minimum. Moreover, Defen-dant’s sentence was below the advisoryGuideline range of 292–365 months—‘‘arange that defines the national norm forsentencing for this particular crime.’’ Id.In this case, the Government prosecutedDefendant for stepping out of his role as adoctor, becoming a criminal drug dealer,and prescribing a controlled substance thatresulted in Wirick’s death. The sentenceon count 1 ‘‘does not resemble the sen-tences of disproportionate severity thatcourts have struck down as cruel and un-usual in the past.’’ Id. (citing Weems v.United States, 217 U.S. 349, 358, 364, 381,30 S.Ct. 544, 54 L.Ed. 793 (1910) (discuss-ing sentence of 15 years at hard labor forfalsifying a government form)). Accord-ingly, we conclude Defendant’s sentencewas not excessive and does not violate theEighth Amendment’s prohibition on crueland unusual punishment.

B.

[25] Having determined the districtcourt did not impose a sentence in viola-tion of the Eighth Amendment, we nowturn to whether it imposed a sentence inviolation of the Fifth Amendment’s DueProcess Clause. When Congress enactedthe Controlled Substances Act, it estab-lished five schedules of controlled sub-stances. Congress empowered the Attor-ney General to move a substance from oneschedule to another schedule and to add orremove substances from the schedules. 21U.S.C. § 811(a). The Attorney Generalmust follow specified procedures whenadding a substance to a schedule.

First, the Attorney General must re-quest a scientific and medical evaluationfrom the Secretary of Health and Hu-man Services (HHS), together with arecommendation as to whether the sub-

stance should be controlled. A sub-stance cannot be scheduled if the Secre-tary recommends against it. § 201(b), 21U.S.C. § 811(b). Second, the AttorneyGeneral must consider eight factors withrespect to the substance, including itspotential for abuse, scientific evidence ofits pharmacological effect, its psychic orphysiological dependence liability, andwhether the substance is an immediateprecursor of a substance already con-trolled. § 201(c), 21 U.S.C. § 811(c).Third, the Attorney General must com-ply with the notice-and-hearing provi-sions of the Administrative ProcedureAct (APA), 5 U.S.C. §§ 551–559, whichpermit comment by interested parties.§ 201(a), 21 U.S.C. § 811(a). In addi-tion, the Act permits any aggrieved per-son to challenge the scheduling of asubstance by the Attorney General in acourt of appeals. § 507, 21 U.S.C. § 877.

Touby v. United States, 500 U.S. 160, 162–63, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991).We normally will not set aside a legislativeclassification ‘‘if any state of facts rational-ly justifying it is demonstrated to or per-ceived by the courts.’’ United States v.Szycher, 585 F.2d 443, 445 (10th Cir.1978).And the Controlled Substances Act direct-ly affects the health and safety of Ameri-can citizens. The record before us on thisissue is thin. Rather than explain how theAttorney General made an irrational deci-sion in scheduling the drugs, Defendantsimply states ‘‘[t]he CSA’s legislative histo-ry and the relevant case law do not revealany rational explanation for which a physi-cian convicted of unlawfully prescribingPercocet has committed a sufficiently moreegregious crime than a physician convictedof unlawfully prescribing Lortab, to justifya mandatory 20–year prison sentence.’’(internal footnote omitted). We simplycannot say the Attorney General acted ir-rationally on this record.



VII.

Finally, for the first time on appeal,Defendant alleges the district court com-mitted error when it sentenced him to ageneral 240–month sentence of imprison-ment, rather than specifying individualsentences for each offense. Nine of De-fendant’s counts of conviction have a maxi-mum statutory term of imprisonment be-low the 240 month statutory minimumterm of imprisonment for count 1. Defen-dant believes his sentence is illegal be-cause the district court may have imposeda sentence on counts 2, 4–7, 15–17, and 108that exceeds the statutory maximum. Or-dinarily, we review a challenge to the le-gality of a sentence de novo. UnitedStates v. Jones, 235 F.3d 1231, 1235 (10thCir.2000). But because Defendant raisesthis issue for the first time on appeal, wereview for plain error.

[26, 27] Defendant’s sentence was gov-erned by 2011 United States SentencingGuideline § 5G1.2(b), which states that‘‘the sentence imposed on each other countshall be the total punishment.’’ Section5G1.2(c) provides that ‘‘[i]f the sentenceimposed on the count carrying the higheststatutory maximum is adequate to achievethe total punishment, then the sentenceson all counts shall run concurrently, exceptto the extent otherwise required by law.’’So, what happens where the total punish-ment exceeds the statutory maximum onsome counts of conviction? The applica-tion notes provide guidance:

Usually, at least one of the counts willhave a statutory maximum adequate to

permit imposition of the total punish-ment as the sentence on that count.The sentence on each of the othercounts will then be set at the lesser ofthe total punishment and the applicablestatutory maximum, and be made to runconcurrently with all or part of the long-est sentence.

U.S. Sentencing Guideline Manuel § 5G1.2cmt. n.1 (2011). The 240–month total sen-tence is problematic only for counts 2, 4–7,15–17, and 108. But did the district courtplainly err by failing to impose a sentenceon each count? A district court imposesan illegal sentence when it sentences adefendant to a term of incarceration thatexceeds the statutory maximum. UnitedStates v. Gonzalez–Huerta, 403 F.3d 727,739 n. 10 (10th Cir.2005). Such an illegalsentence triggers ‘‘per se, reversible, plainerror.’’ Id. In this case, the district courtannounced at sentencing that Defendantwould serve a term of imprisonment of 240months, a total sentence below the adviso-ry guideline range, but yet exceeded thestatutory maximum sentence on ninecounts. We could easily assume from theGuidelines that the district court sentencedDefendant to 240 months on counts 1, 8–14, 18–26, 32–35, 41–42, 81–84, 120–121,and 123–124; that he sentenced Defendantto 180 months on count 2; 120 months oncounts 4–7 and 108; and 48 months oncounts 15–17. And we could further as-sume that the sentences were imposed torun concurrently. But the judgment isunclear whether the district court intendedto impose a 240–month sentence on eachcount, a clearly illegal sentence.22 See e.g.

22. The district court stated the sentence itimposed, the statutory minimum on count 1,was ‘‘too long,’’ but ‘‘Congress has imposedthis law, not me.’’ Appellee’s Supp. App’x,vol. 1, 262. The court obviously varied down-ward in imposing a sentence of 240 months,but did not articulate its reasoning. After asentencing judge considers all of the factors

listed in 18 U.S.C. § 3553(a) and makes anindividualized assessment based on the factspresented, the judge ‘‘must adequately explainthe chosen sentence to allow for meaningfulappellate review and to promote the percep-tion of fair sentencing.’’ Gall v. United States,552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d445 (2007). Accordingly, at re-sentencing,


847WILSON v. MONTANOCite as 715 F.3d 847 (10th Cir. 2013)

United States v. Ward, 626 F.3d 179, 184(3d Cir.2010); United States v. Cummings,395 F.3d 392, 400 (7th Cir.2005); UnitedStates v. Woodard, 938 F.2d 1255, 1257(11th Cir.1991). Accordingly, a limited re-mand is necessary to allow the districtcourt to clarify the sentence for the record.

AFFIRMED IN PART and REMAND-ED for resentencing.

,

Michael WILSON, Sr., Plaintiff–Appellee,

Jesse Ortiz; Oscar Leyva; PatrickMarquez; Mark Sanchez; Dustn

Sarrett, Plaintiffs,

v.

Lawrence MONTANO, Deputy; FredTorres, Deputy; Joe Chavez, Warden;Rene Rivera, former Sheriff; Defen-dants–Appellants,

John Doe, VCDC booking officer or em-ployee; Martin Benavidez, Officer;Mike Chavez, former Chief of Police;Brent Woodard; Nick Balido, formerLos Lunas Police Department, Chiefof Police; Louis Burkhard, Sheriff;Delinda Chavez; Joseph Chavez; RoyA. Cordova; Greg Jones, BosqueFarms Police Department, PoliceChief; Roy Melnick, Los Lunas PoliceDepartment, Chief of Police; DanRobb, Belen Police Department, Chief

of Police; Steven Roberts; DerekWilliams; Joe Stidham, Former Bos-que Farms Police Department, PoliceChief, Defendants.

No. 12–2051.

United States Court of Appeals,Tenth Circuit.

May 3, 2013.

Background: Arrestee brought § 1983action against county sheriff, several depu-ties, and warden of county’s detention cen-ter, alleging that he was unlawfully de-tained and violation of his constitutionalright to prompt probable cause determina-tion. The United States District Court forthe District of New Mexico denied defen-dants’ motion to dismiss. Defendants ap-pealed.

Holdings: The Court of Appeals, Murphy,Circuit Judge, held that:

(1) qualified immunity was unwarrantedon ground that it was not clearly estab-lished which defendants had duty toensure prompt probable cause hearing;

(2) arrestee did not sufficiently allege thatassisting deputy was personally in-volved in violation of his right toprompt probable cause hearing;

(3) arrestee sufficiently alleged that ar-resting deputy was personally involvedin violation of his right to prompt prob-able cause hearing; and

(4) arrestee sufficiently alleged that war-den and sheriff established policies ofcustoms that led to arrestee’s constitu-tional injury.

Affirmed in part and reversed and re-manded in part.

the court needs to explain why the sentence itimposes is sufficient, but not greater than

necessary to satisfy the sentencing objectives.


ATTACHMENT C

United States v. MacKay, 1:10CR00094-DB

Amended Judgment 7/9/14


ATTACHMENT D

United States v. MacKay, 1:10CR00094-DB

Amended Judgment 7/10/14


mackay appeal

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