United States v. Chin ( 2022 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 21-1574
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    GLENN A. CHIN,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Richard G. Stearns, U.S. District Judge]
    Before
    Barron, Chief Judge,
    Lipez and Howard, Circuit Judges.
    James L. Sultan, with whom Rankin & Sultan was on brief, for
    appellant.
    Christopher R. Looney, Assistant United States Attorney, with
    whom Rachael S. Rollins, United States Attorney, was on brief, for
    appellee.
    July 15, 2022
    BARRON, Chief Judge.       This appeal requires us to revisit
    the sentence that Glenn Chin, a former supervising pharmacist at
    the New England Compounding Center ("NECC"), received for his
    convictions in connection with the criminal investigation into the
    deadly nationwide outbreak of fungal meningitis in 2012 that was
    traced to the company's shipments of contaminated drugs.                   When we
    last considered Chin's sentence, we vacated and remanded it.                    See
    United States v. Chin, 
    965 F.3d 41
    , 60 (1st Cir. 2020) ("Chin I").
    The United States District Court for the District of Massachusetts
    resentenced Chin while applying two sentencing enhancements under
    the United States Sentencing Guidelines ("Guidelines").                         U.S.
    Sent'g       Guidelines   Manual        §§        2B1.1(b)(16)(A),   3A1.1(b)(1)
    [hereinafter U.S.S.G].         Chin contends that neither enhancement
    applies and thus that his sentence must be vacated once again.                   We
    affirm.
    I.
    The events at NECC have already been the subject of
    several reported decisions by this Court.                 We thus will rehearse
    only the facts relevant to Chin's current challenge to certain
    aspects of his resentencing.            We refer the reader to Chin's first
    appeal, Chin I, 965 F.3d at 45-46, and to the appeal of Barry
    Cadden, Chin's boss at NECC, United States v. Cadden, 
    965 F.3d 1
    ,
    7-8   (1st    Cir.   2020),   for   a    more      detailed   discussion   of   the
    underlying facts.
    - 2 -
    NECC was a pharmacy based in Framingham, Massachusetts,
    that specialized in high-risk drug compounding, which refers to a
    process in which non-sterile ingredients are combined to create
    sterile drugs that are prepared at the request of hospitals and
    other healthcare providers.           Chin worked as a licensed pharmacist
    at NECC from April 2004 to October 2012.
    In January 2010, Chin was promoted to the role of
    supervising pharmacist at NECC, in which he oversaw all drug
    production in NECC's two "clean rooms."                 In the fall of 2012, a
    number   of    patients    who   had    received        epidural   injections   of
    methylprednisolone        acetate      ("MPA")     --    a   steroid   for   pain
    relief -- contracted rare fungal infections that were ultimately
    traced back to contaminated drugs produced at NECC under Chin's
    supervision.     A number of those patients died.
    A federal criminal investigation into NECC's practices
    ensued, and in connection with it Chin was charged in December of
    2014   with    "racketeering     in    violation    of 
    18 U.S.C. § 1962
    (c);
    racketeering     conspiracy      in    violation    of 
    18 U.S.C. § 1962
    (d);
    forty-three counts of federal mail fraud in violation of 
    18 U.S.C. § 1341
    ; and thirty-two counts of violating the Federal Food, Drug,
    and Cosmetic Act ('FDCA'), see 
    21 U.S.C. §§ 331
    (a), 333(a)."                 Chin
    I, 965 F.3d at 45.        After a jury trial, Chin was found guilty on
    all counts.     Id. at 46.
    - 3 -
    Evidence was introduced at trial that showed that Chin
    was familiar with Chapter 797 of the United States Pharmacopeia
    ("USP-797"),    which   sets   forth        standards   governing   sterile
    compounding    that   pharmacists    licensed     in    Massachusetts   must
    follow. Evidence introduced at trial also supportably showed that,
    despite NECC claiming to be USP-797 compliant, Chin knew that NECC
    was selling MPA that had not been properly sterilized or tested
    for sterility in accordance with USP-797.               And, evidence was
    introduced at trial that showed that NECC's clean room became
    grossly contaminated with mold and bacteria after Chin instructed
    clean room staff to ignore cleaning protocols, and that Chin knew
    of this contamination.
    At Chin's sentencing in January 2018, the government,
    among other things, requested that the District Court apply the
    two Guidelines that set forth the enhancements that are the subject
    of Chin's present appeal.       The first enhancement is U.S.S.G.
    § 2B1.1(b)(16)(A), which imposes a two-level increase in the base
    offense level of those convicted of certain crimes "[i]f the
    offense involved . . . the conscious or reckless risk of death or
    serious   bodily   injury."    The    second     enhancement   is   U.S.S.G.
    § 3A1.1(b), which imposes a two-level increase in the base offense
    level "[i]f the defendant knew or should have known that a victim
    of the offense was a vulnerable victim" and an additional two-
    - 4 -
    level   increase    if   that   enhancement   applies    and   "the    offense
    involved a large number of vulnerable victims."
    The District Court declined to apply either enhancement
    in sentencing Chin to a term of imprisonment of 96 months, to be
    followed by two years of supervised release.            The District Court
    determined at Chin's first sentencing that the "conscious or
    reckless risk" enhancement did not apply because "the evidence did
    not establish a reckless and knowing disregard of a reasonable
    certainty of causing death or great bodily harm."              The District
    Court determined that the "vulnerable victim" enhancement did not
    apply because "here the victims that were identified were the
    clinics and the hospitals who purchased the drugs," and "because
    we construe 'victim' differently for purposes of sentencing, the
    enhancements do not apply on a proximate cause theory to persons
    who were not recipients of NECC's representations" -- that is, the
    individuals who were ultimately harmed by injections of tainted
    pharmaceuticals from NECC.
    The government appealed the sentence that the District
    Court had imposed.       It did so, in part, on the ground that the
    District Court erred in not applying either enhancement.
    On appeal, this Court rejected the District Court's
    basis   for    determining   that   the   "conscious    or   reckless    risk"
    enhancement did not apply.          Chin I, 965 F.3d at 53.           We first
    explained that the District Court failed to consider whether Chin's
    - 5 -
    "relevant conduct," rather than the nature of his "offense" alone,
    carried with it the risk of death or serious bodily injury.    Id.
    at 52–53.     We further explained that the District Court erred
    because it
    found   that  Chin    did   not  act   with   a
    "reckless and knowing" state of mind in
    disregarding a "reasonable certainty of
    . . . death or great bodily harm."          The
    sentencing enhancement, however, describes
    the requisite mental state using disjunctive
    language: the enhancement applies so long as
    the defendant acted in spite of either a
    "conscious or reckless risk."         U.S.S.G.
    § 2B1.1(b)(16)(A) (emphasis added). Thus, the
    District Court's finding does not foreclose
    the possibility that Chin's offense involved
    the   mental    state    necessary   for    the
    enhancement's application.       We therefore
    vacate and remand the sentence for the
    District Court to assess whether any of Chin's
    relevant conduct, as defined under U.S.S.G.
    § 1B1.3(a), "involved . . . the conscious or
    reckless risk of death or serious bodily
    injury." Id. § 2B1.1(b)(16).
    Id. at 53 (omissions in original).
    Chin I was published on the same day as Cadden, and it
    referenced the Cadden opinion in its analysis of the "conscious or
    reckless risk" issue. See Chin I, 965 F.3d at 52. Cadden similarly
    vacated the District Court's refusal to apply this enhancement to
    Cadden and remanded for the court to consider the proper mens rea
    for the § 2B1.1(b)(16)(A) enhancement.     We explained that
    the District Court . . . at no point directly
    addressed    in    sentencing    whether    a
    - 6 -
    preponderance    of    the    evidence    . . .
    established that Cadden's relevant conduct
    associated with the mail fraud involved a
    "conscious or reckless risk of death or
    serious    bodily     injury."         U.S.S.G.
    § 2B1.1(b)(16); Cf. United States v. Lucien,
    
    347 F.3d 45
    ,    56-57   (2d    Cir.   2003)
    (concluding that a conscious risk is one
    "known to the defendant" while a reckless risk
    is "the type of risk that is obvious to a
    reasonable person and for which disregard of
    said risk represents a gross deviation from
    what a reasonable person would do").
    
    965 F.3d 1
    , 34–35.
    In Chin I, this Court also rejected the District Court's
    basis for determining that the "vulnerable victim" enhancement did
    not apply.      We explained in doing so that, "'[t]o come within the
    guidelines' definition' of 'victim,' 'one need not be a victim of
    the charged offense so long as one is a victim of the defendant's
    other relevant conduct.'"           965 F.3d at 54 (alteration in original)
    (quoting Cadden, 965 F.3d at 35).                 Moreover, in Chin I, with
    respect    to    whether     Chin's       particular    conduct    warranted    the
    enhancement, we framed the question on remand with reference to
    commentary in the Guidelines.                Specifically, we stated, "[w]e
    . . . leave it to the District Court in the first instance to
    address,    among    other     things,      whether     [Chin's]    actions     were
    analogous       to   those     of     a     fraudster     who      'market[s]    an
    ineffective cancer cure,' who the Guidelines indicate would merit
    - 7 -
    the enhancement, U.S.S.G. § 3A1.1 cmt. n.2."       Chin I, 965 F.3d at
    54.
    Following this Court's decisions in Cadden and Chin I,
    Cadden was resentenced on July 7, 2021.    Chin was resentenced the
    next day by the same judge who had resentenced Cadden and who had
    previously sentenced both men.
    At Cadden's resentencing, the District Court observed
    that, at the first sentencing, it had treated the applicable mens
    rea standard as "not recklessness in the tort law sense but in the
    appreciably   stricter   criminal   law   sense,    requiring   actual
    knowledge of an impending harm easily preventable."          But, the
    District Court noted in resentencing Cadden, "[i]t's clear rather
    from the decision in Mr. Cadden's case that the First Circuit has
    adopted the Second Circuit's definition [in Lucien, 
    347 F.3d at 56-57
    ], which is a quite different definition of recklessness."
    The District Court then quoted the definition of recklessness from
    Lucien: "the type of risk that is obvious to a reasonable person
    and for which disregard of said risk represents a gross deviation
    from what a reasonable person would do," Lucien, 
    347 F.3d at
    56-
    57.
    In assessing whether the enhancement applied to Cadden,
    the District Court found that Cadden "preside[d] over" a "high-
    risk enterprise" at NECC and did so
    - 8 -
    despite warnings, signals, . . . incomplete
    testing, falsification of drug lab cleaning
    reports, . . . the appearance of mold and
    other contaminants in the clean room, and his
    superior knowledge of the risk involved[.] I
    have to conclude that [Cadden's] conduct did
    and does fit within the definition of
    "recklessness."
    The District Court then applied the enhancement to Cadden.
    Chin was resentenced by the District Court the day after
    Cadden was.    The District Court declared in resentencing Chin, "I
    do not want to retread ground that I covered yesterday. . . . . I
    assume [the First Circuit's quotation of Lucien in Cadden] meant
    they were adopting or at least embracing the Second Circuit's view
    of how 'recklessness' would be defined in this case." The District
    Court then held the "conscious or reckless risk" enhancement
    applicable to Chin.
    In addition, at Cadden's resentencing, the District
    Court noted that, in light of the First Circuit's ruling in
    Cadden's first appeal, "'victims' [are] defined . . . by the larger
    picture of [an offender's] conduct as a whole," and that "any
    person who entrusts medical personnel to inject a foreign substance
    into their spine by definition fits what I would think, and
    ordinary   people   would   think,    is   a   definition   of   being     in   a
    vulnerable    position."     The     District    Court   then    applied    the
    "vulnerable victim" enhancement to Cadden.
    - 9 -
    At Chin's resentencing, the District Court observed that
    the "First Circuit['s] . . . expansive view of what constitutes a
    'victim' under the Guidelines was pretty clear to me," and that
    "vulnerability can . . . refer to one's . . . inability to protect
    one's self under the circumstances."          The District Court then held
    the "vulnerable victim" enhancement applicable to Chin as well.
    After applying both the "conscious or reckless risk" and
    "vulnerable   victim"    enhancements    to    Chin,   the   District   Court
    determined that Chin's total offense level was 34.           Given that the
    District Court determined that Chin's Criminal History Category
    was I, the District Court calculated his Guidelines Sentencing
    Range to be a term of imprisonment of 151–188 months.          The District
    Court thereafter imposed a 126-month term of imprisonment and two
    years of supervised release.       Chin timely appeals. "[W]e review
    the District Court's 'factfinding for clear error and afford de
    novo consideration to its interpretation and application of the
    sentencing guidelines.'"      Chin I, 965 F.3d at 50 (quoting United
    States v. Benítez-Beltrán, 
    892 F.3d 462
    , 469 (1st Cir. 2018)).
    II.
    We start with Chin's challenge to the District Court's
    application of the two-level enhancement set forth in U.S.S.G.
    § 2B1.1(b)(16)(A).      We are not persuaded by it.
    - 10 -
    A.
    Chin first argues that the District Court erred in
    interpreting § 2B1.1(b)(16)(A).        He contends that is so because
    the District Court held the enhancement to apply so long as there
    is proof that the offense, including the defendant's relevant
    conduct, involved a risk of death or serious bodily injury of which
    the defendant should have been aware and thus to apply even in the
    absence of proof by a preponderance of the evidence that the
    defendant in fact knew of that risk.
    Chin contends in support of that argument that the
    District Court based its "should have known" interpretation of the
    enhancement solely on our invocation in the course of construing
    that same provision of the Guidelines in Cadden of the Second
    Circuit's decision in Lucien.        He goes on to contend, however,
    that "it is not at all clear from this Court's 'Cf.' citation to
    Lucien that it was adopting that particular definition of 'reckless
    risk.'"
    Chin further argues that, given that we did not hold in
    Cadden that Lucien controls, we must construe the enhancement
    afresh.   And, he contends, by virtue of the use of the word
    "reckless"   in   § 2B1.1(b)(16)(A),    the   enhancement   is   properly
    construed to require proof that a defendant was aware that his
    relevant conduct in committing his offense created a risk of death
    or serious bodily injury and not merely that he should have known
    - 11 -
    of   that    risk.    He   then    contends       that,   in   consequence,     the
    enhancement cannot be applied to him, because the government did
    not prove by a preponderance of the evidence that Chin was aware
    of any such risk in engaging in the conduct relevant to his
    offense.
    We agree with Chin that the "Cf." citation to Lucien in
    our Cadden decision, 965 F.3d at 34–35, does not resolve how this
    enhancement must be construed.            We did not have occasion in Cadden
    to address the meaning of the word "reckless" in the enhancement.
    Our focus there was solely on the District Court's failure to
    address Cadden's "relevant conduct" in applying the enhancement
    as   § 1B1.1 cmt. n.1(I) of the Guidelines requires, given that the
    District     Court   appeared      to    focus    in   assessing    whether     the
    enhancement applied on the nature of the offenses of which Cadden
    had been convicted.        See Cadden, 965 F.3d at 34; U.S.S.G. § 1B1.1
    cmt. n.1(I) (defining "offense"); id. § 1B1.3(a)(1)(A) (setting
    forth "relevant conduct" for purposes of computing base offense
    level,   offense     characteristics,       and    adjustments).         But,   even
    though Cadden's invocation of Lucien is not controlling of the
    question     presented     here,    we     nonetheless     conclude      that   the
    enhancement is best construed as Lucien construed it.
    The   Guideline     refers    to    a   "conscious   or    reckless
    risk."      U.S.S.G. § 2B1.1(b)(16)(A) (emphasis added).              If we were
    to read "reckless" in this Guideline itself to require a defendant
    - 12 -
    to be aware of the risk of death or substantial bodily injury, as
    Chin contends we must, the use of the words "conscious or" in that
    same Guideline would be superfluous.       See United States v. DeLuca,
    
    17 F.3d 6
    , 10 (1st Cir. 1994) ("'[A]ll words and provisions of
    statutes are intended to have meaning and are to be given effect,
    and no construction should be adopted which would render statutory
    words or phrases meaningless, redundant or superfluous.'           We think
    that    this     principle      is   fully       applicable        to    the
    sentencing guidelines    . . . ."    (internal      citations      omitted)
    (quoting Lamore v. Ives, 
    977 F.2d 713
    , 716–17 (1st Cir. 1992))).
    Nor can this redundancy be avoided, as Chin suggests, by
    "requiring the government to prove, at the very least, what amounts
    to willful blindness" to prove recklessness.         "Willful blindness
    serves as an alternate theory on which the government may prove
    knowledge."    United States v. Pérez-Meléndez, 
    599 F.3d 31
    , 41 (1st
    Cir. 2010).
    In construing the Guideline to require proof only that
    the risk would have been obvious to a reasonable person in Chin's
    position, we align ourselves not only with the Second Circuit
    decision in Lucien, but with the Ninth and Tenth Circuits too.
    See United States v. Maestas, 
    642 F.3d 1315
    , 1321 (10th Cir. 2011)
    ("[A]   defendant’s   conduct   involves    a   conscious   risk    if   the
    defendant was subjectively aware that his or her conduct created
    a risk of serious bodily injury, and a defendant’s conduct involves
    - 13 -
    a reckless risk if the risk of bodily injury would have been
    obvious to a reasonable person."); United States v. Johansson, 
    249 F.3d 848
    , 859 (9th Cir. 2001) ("We do not believe that a defendant
    can   escape   the    application    of    the   serious   risk   of   injury
    enhancement by claiming that he was not aware that his conduct
    created a serious risk, that is, a defendant does not have to
    subjectively know that his conduct created the risk.").            And while
    Chin is right that two courts of appeals have ruled to the contrary
    and interpreted § 2B1.1(b)(16)(A) to require actual, subjective
    awareness of a risk, see United States v. Mohsin, 
    904 F.3d 580
    ,
    586 (7th Cir. 2018); United States v. McCord, Inc., 
    143 F.3d 1095
    ,
    1098 (8th Cir. 1998), neither of those courts explains how that
    interpretation accords with the enhancement's use of the words
    "conscious or" before "reckless."          See Johansson, 
    249 F.3d at 858
    ("Our     concern    with   the   Eighth     Circuit's   interpretation   of
    'reckless' [in       McCord] . . . is that there is no meaningful
    distinction between an offense that involves the 'conscious' risk
    of injury, and an offense that involves the 'reckless' risk of
    injury, if under either prong the defendant must have been aware
    of the risk in the first place."); accord Maestas, 
    642 F.3d at 1320-21
    .1
    1Chin does also point to the Eleventh Circuit's decision in
    United States v. Mateos, 
    623 F.3d 1350
     (11th Cir. 2010), which
    applied the enhancement on the ground that the sentencing court
    had "f[ound] that a trained nurse, such as [the defendant] . . .,
    - 14 -
    Chin     does    point     out    that,      although    neither
    § 2B1.1(b)(16)(A)    nor   its    application   notes    define    the   term
    "reckless," a definition of that word does appear elsewhere in the
    Guidelines. He then argues that we thus must apply that definition
    of "reckless" here.
    Chin has in mind the definition of "reckless" that
    appears in the application notes to the Guideline that concerns
    involuntary manslaughter.        See U.S.S.G. § 2A1.4.      That Guideline
    sets different base offense levels for involuntary manslaughter
    depending on whether "the offense involved criminally negligent
    conduct; or . . . the offense involved reckless conduct; or . . .
    the   offense   involved   the    reckless   operation    of   a   means   of
    transportation."    Id.    The application note to that Guideline, in
    turn, defines "reckless" as follows:
    "Reckless" means a situation in which the
    defendant was aware of the risk created by his
    conduct and the risk was of such a nature and
    degree that to disregard that risk constituted
    a gross deviation from the standard of care
    that a reasonable person would exercise in
    such a situation.
    would be well aware" of the risks associated with her criminal
    activity, id. at 1371.    But, as the government observes, this
    standard more closely resembles a should-have-known standard than
    an actual awareness standard. Moreover, insofar as the Eleventh
    Circuit meant to embrace an actual-awareness-of-risk requirement
    in Mateos, see id. ("the Guidelines provision focuses on the
    defendant's disregard of risk"), it, too, made no attempt to
    explain how such a requirement could be reconciled with the
    Guideline's text.
    - 15 -
    Id. § 2A1.4 cmt. n.1.          The application note also explains that
    "'[c]riminally negligent' means conduct that involves a gross
    deviation from the standard of care that a reasonable person would
    exercise under the circumstances, but which is not reckless."                    Id.
    But,   the    application        note     that    sets     forth   this
    definition of "reckless" in connection with the Guideline that
    concerns    involuntary    manslaughter        does    not    purport    to    apply
    throughout the Guidelines.           Nor does it even purport to apply to
    the Guideline at issue here in particular, which applies to fraud
    and certain related offenses.            Thus, the application note does
    not, by its terms, require us to apply the definition of "reckless"
    that it sets forth here.
    Moreover, it is problematic to apply that definition
    here as a textual matter.            The definition of "reckless" in the
    involuntary    manslaughter     Guideline      refers    to    a     "risk."     See
    U.S.S.G. § 2A1.4 cmt. n.1.             It is thus hard to see how that
    definition could have been intended to apply to this Guideline,
    because this Guideline itself uses the word "reckless" to modify
    the word "risk."    No such awkwardness arises under the involuntary
    manslaughter    Guideline;      it    uses   the     adjective     "reckless"     to
    describe a defendant's conduct -- either "reckless conduct" or
    "reckless    operation    of   a     means   of     transportation,"      U.S.S.G.
    § 2A1.4.    See Maestas, 
    642 F.3d at 1321
     (observing the distinction
    - 16 -
    between the two Guidelines' respective uses of "reckless conduct"
    and "reckless risk"); Johansson, 
    249 F.3d at 859
     ("The Guideline
    describes a 'reckless risk,' not a reckless disregard of a known
    risk.").2
    Chin   separately   argues    that   --   the   definition   of
    "reckless" elsewhere in the Guidelines aside -- the term as it
    appears in the enhancement at issue here is best construed to
    require the defendant to be aware of the risk of death or serious
    bodily injury.     He relies for this contention in part on other
    instances in which recklessness has been defined to require a
    2 Chin draws our attention to a case in which this Court
    relied on the definition of "reckless" from the involuntary
    manslaughter Guideline when interpreting a third Guideline's use
    of that word. See United States v. Carrero-Hernández, 
    643 F.3d 344
    , 348–50 (1st Cir. 2011). There, this Court was tasked with
    interpreting a Guideline that provided for an increased offense
    level "if the defendant recklessly created a substantial risk of
    death or serious bodily injury to another person in the course of
    fleeing from a law enforcement officer," U.S.S.G. § 3C1.2, whose
    application note expressly imported the definition of "reckless"
    from the Guideline on involuntary manslaughter, id. cmt. n.2; see
    also Carrero-Hernández, 
    643 F.3d at 348
    . But, even setting aside
    the fact that in that case -- unlike this one -- the Guideline in
    question expressly incorporated the definition of "reckless" set
    out in the application note to § 2A1.4, Carrero-Hernández
    illustrates why the text of Chin's enhancement compels a different
    construction of the word "reckless." The provision at issue in
    Carrero-Hernández, like the involuntary manslaughter Guideline,
    used "reckless[]" to describe how an offender engaged in risky
    conduct.   See U.S.S.G. § 3C1.2 ("If the defendant recklessly
    created a substantial risk . . ."); id. § 2A1.4 ("if the offense
    involved reckless conduct . . .").      By contrast, as we have
    explained, "reckless" in § 2B1.1(b)(16)(A) describes expressly a
    "risk," not the way an offender conducted himself with respect to
    that risk. See id. § 2B1.1(b)(16)(A).
    - 17 -
    defendant's subjective awareness of a risk.                  See Voisine v. United
    States, 
    579 U.S. 686
    , 694, 699 (2016) (describing reckless conduct
    as "acts undertaken with awareness of their substantial risk of
    causing injury" and "with conscious disregard of a substantial
    risk of harm"); Farmer v. Brennan, 
    511 U.S. 825
    , 836–37 (1994)
    ("The     criminal     law      . . .     generally    permits       a       finding    of
    recklessness only when a person disregards a risk of harm of which
    he is aware.").
    But, in those instances, the term defines the mens rea
    element of a criminal offense, see Voisine, 579 U.S. at 691;
    Farmer,    
    511 U.S. at
      836–37,     which   must     be   proved       beyond   a
    reasonable doubt.3         Here, however, the term appears in a sentencing
    enhancement, which is subject only to the lower preponderance of
    the evidence standard that also applies in the civil context.                          See
    United States v. Hernández-Negrón, 
    21 F.4th 19
    , 25-26 (1st Cir.
    2021).    Thus, the examples of "reckless" being given the stricter
    meaning on which Chin relies fail to show that this Guideline is
    best construed to incorporate a meaning of "reckless" that is used
    to   define    an    element     of   a   crime,    rather    than       a   meaning    of
    3Farmer was a civil Bivens action in which the Court held
    that "deliberate indifference," for the purposes of defining a
    violation of the Eighth Amendment, see Helling v. McKinney, 
    509 U.S. 25
    , 32 (1993), required actual knowledge and disregard of a
    risk, rather than merely an objective risk. 
    511 U.S. at 837
    , 839–
    40.   The Court explained in so holding, however, that it was
    "adopt[ing]" what it called "subjective recklessness as used in
    the criminal law." 
    Id.
     at 839–40.
    - 18 -
    "reckless" that is traditionally used in the civil context, which
    is the one the Second Circuit attributes to it in Lucien, 
    347 F.3d at 56-57
    .        See Safeco Ins. Co. of Am. v. Burr, 
    551 U.S. 47
    , 68
    (2007) ("While 'the term recklessness is not self-defining,' the
    common law has generally understood it in the sphere of civil
    liability    as    conduct   violating       an    objective      standard:      action
    entailing 'an unjustifiably high risk of harm that is either known
    or so obvious that it should be known.'" (quoting Farmer, 
    511 U.S. at 836
    )); see also 
    id.
     at 68 n.18 ("Unlike civil recklessness,
    criminal recklessness also requires subjective knowledge on the
    part of the offender.").
    We do not mean to suggest that the word "reckless" in a
    Guideline    necessarily     incorporates          the    traditional     common-law
    understanding of the term in the civil context.                     But, given the
    use   of   the    words   "conscious    or    reckless"      to    modify   risk    in
    § 2B1.1(b)(16)(A), the text requires us to construe "reckless"
    here to refer to that standard.
    B.
    Chin argues in the alternative that the record fails to
    show by a preponderance of the evidence that his relevant conduct
    satisfied the objective standard for recklessness, even if that
    standard is the applicable one under this Guideline. Specifically,
    he    contends     that   "[w]hile     [he]       was    aware    that   there    were
    deficiencies in testing and the condition of the compounding lab
    - 19 -
    . . ., it would have required rank speculation to foresee that
    those   shortcomings   would    cause    the   vials   of    MPA    to   become
    contaminated with fungus, leading to a scourge of serious illness
    and death."   We are not persuaded.
    The District Court did not expressly set forth findings
    about the nature of the risk of which Chin should have been aware
    from his relevant conduct in committing his offense.               However, we
    may look to the record of the sentencing hearing to ascertain the
    District Court's reasoning.     Cf. United States v. Montero-Montero,
    
    817 F.3d 35
    , 37 (1st Cir. 2016) ("To be sure, a sentencing court's
    rationale sometimes may be inferred from the sentencing colloquy
    and the parties' arguments (oral or written) in connection with
    sentencing.").
    Notably,    before     applying       the       § 2B1.1(b)(16)(A)
    enhancement to Chin, the District Court explained that it "d[id]
    not want to retread ground that [it] covered yesterday."                  It is
    thus evident that the District Court was relying on the same
    rationale for applying this enhancement to Chin that it had relied
    on the day before in applying the enhancement to Cadden.                 And, at
    Cadden's   resentencing,   it   had     explained   that    the    enhancement
    applied to Cadden because Cadden "preside[d] over" a "high-risk
    enterprise" at NECC
    despite warnings, signals, . . . incomplete
    testing, falsification of drug lab cleaning
    reports, . . . the appearance of mold and
    - 20 -
    other contaminants in the clean room, and his
    superior knowledge of the risk involved.
    Of course, the record in Chin's case must provide support
    for the District Court's decision to apply the enhancement to him
    based on this same rationale.      But, reviewing the District Court’s
    factfinding for clear error, Chin I, 965 F.3d at 50, we conclude
    that the record here supportably shows that Chin knew in 2012 that
    NECC's clean room was grossly contaminated after his staff's
    failure to adhere to cleaning protocols, that he knew that NECC
    was selling MPA that was not properly sterilized or tested for
    sterility despite claiming that it was USP-797 compliant, and that
    he instructed NECC technicians to mislabel untested drugs with the
    lot numbers of older lots that NECC had tested.               And, as the
    government points out, the record also supportably shows that Chin
    was required to follow USP-797 standards, the purpose of which "is
    to describe conditions and practices to prevent harm, including
    death,    to    patients   that   could    result   from   . . . microbial
    contamination."      Thus, the District Court did not clearly err in
    finding that Chin should have been aware of the risk of death or
    serious bodily injury that his conduct in committing his offense
    posed, given the evidence supportably showing that he breached
    USP-797        standards   that    exist      in    part    to    "prevent
    . . . death . . . to patients."
    - 21 -
    III.
    We next address Chin's contention that the District
    Court erred in applying an enhancement to his sentence that
    provides for a two-level increase "[i]f the defendant knew or
    should have known that a victim of the offense was a vulnerable
    victim."     U.S.S.G. § 3A1.1(b)(1).4            The application note further
    explains that the enhancement "applies to offenses involving an
    unusually vulnerable victim."            Id. § 3A1.1 cmt. n.2.       To apply the
    "vulnerable    victim"     enhancement,          "the   sentencing      court   must
    determine that (1) 'the victim of the crime was vulnerable, that
    is, . . . the victim had an "impaired capacity . . . to detect or
    prevent crime;"' and (2) 'the defendant knew or should have known
    of the victim's unusual vulnerability.'"                United States v. Stella,
    
    591 F.3d 23
    ,    29   (1st    Cir.    2009)    (quoting     United    States   v.
    Donnelly, 
    370 F.3d 87
    , 92 (1st Cir. 2004)).
    Chin   does   not    dispute       that    the   patients    who   were
    administered NECC drugs are "victims" in the relevant sense.                      See
    United States v. Bradley, 
    644 F.3d 1213
    , 1288 (11th Cir. 2011)
    (concluding that "recipients of recycled blood-derivatives are
    4U.S.S.G. § 3A1.1(b)(2) provides, "[i]f (A) subdivision (1)
    applies; and (B) the offense involved a large number of vulnerable
    victims, increase the offense level determined under subdivision
    (1) by 2 additional levels."     The District Court applied this
    enhancement at Chin's resentencing. Chin does not argue that the
    District Court erred in applying the additional enhancement in
    § 3A1.1(b)(2) if the District Court properly applied the
    enhancement in § 3A1.1(b)(1).
    - 22 -
    'vulnerable victims'" where owner of pharmaceutical wholesaler's
    fraudulent billing scheme caused AIDS and hemophilia patients to
    be treated with recycled blood derivatives); United States v.
    Milstein, 
    401 F.3d 53
    , 74 (2d Cir. 2005) (affirming application of
    "vulnerable victims" enhancement where defendant "distribute[d]
    counterfeit and misbranded drugs to doctors, pharmacists, and
    pharmaceutical wholesalers, knowing that those customers would
    distribute      the    drugs    to    women     with    fertility      problems       and
    to Parkinson's        disease patients");        see        also   United    States    v.
    Sidhu, 
    130 F.3d 644
    , 655 (5th Cir. 1997) ("[A] physician's patients
    can be victimized by a fraudulent billing scheme directed at
    insurers or other health care providers.").                    But, he still argues
    that neither prong of the enhancement is satisfied here. Reviewing
    the   District        Court's   factfinding       for        clear   error    and     its
    interpretation of the Guidelines de novo, Chin I, 965 F.3d at 50,
    we do not agree.
    A.
    Chin contends that the victims here -- i.e., the patients
    harmed   by     contaminated     NECC     drugs        --    "were   not     'unusually
    vulnerable'" merely because they were members of "a generic class
    of all medical patients."            He further contends that such a finding
    would be inconsistent with the intent and purpose of the Guideline,
    which he says is meant to punish "defendants who exploit the
    particular weaknesses of society's most vulnerable members."                          To
    - 23 -
    the extent Chin contends that the District Court erred in its
    interpretation and application of the Guideline, we disagree under
    de novo review.    To the extent he challenges the District Court's
    factual finding that the victims at issue were in fact "unusually
    vulnerable," we discern no clear error.
    The District Court did not find, as Chin suggests, that
    these   victims   were   unusually      vulnerable    merely    because   they
    belonged to "a generic class of all medical patients."                 Rather,
    the District Court supportably found that they were unusually
    vulnerable   because     their   pain    led   them   to    "entrust   medical
    personnel to inject a foreign substance into their spine[s],"
    recognizing that "vulnerability can equally refer to one's . . .
    inability to protect one's self under the circumstances." Applying
    the enhancement based on particularized class characteristics such
    as these is consistent with our precedent.            Although we have said
    that the sentencing court should focus "on the victim's individual
    characteristics" in applying this enhancement, "above and beyond
    mere membership in a large class," see United States v. Feldman,
    
    83 F.3d 9
    , 15 (1st Cir. 1996), we have also made clear that "this
    is in no way a fixed rule," United States v. Gill, 
    99 F.3d 484
    ,
    486-87 (1st Cir. 1996).     Indeed, "[i]n some cases the inference to
    be drawn from the class characteristics may be so powerful that
    there can be little doubt about unusual vulnerability of class
    members within the meaning of section 3A1.1."              
    Id.
     at 487 (citing
    - 24 -
    United States v. Echevarria, 
    33 F.3d 175
    , 180-81 (2d Cir. 1994)
    (upholding enhancement as applied to unlicensed doctor based on
    group     determination          of   vulnerability     of     medical    patients),
    superseded by regulation on other grounds as stated in United
    States v. Hussey, 
    254 F.3d 428
    , 433 n.3 (2d Cir. 2001), and United
    States v. Bachynsky, 
    949 F.2d 722
    , 735 (5th Cir. 1991) (same, as
    applied to physician making false diagnoses)).                  Thus, reviewing de
    novo,    we   conclude       that     the   District    Court    did     not    err   in
    interpreting the Guideline.
    Nor do we find any clear error in the District Court's
    application of the Guideline to Chin.              Indeed, we have upheld the
    application     of    the     enhancement     in   similar      circumstances:         in
    Stella, we held that victims' "illnesses" can distinguish them
    from     members     of    the    "general    public"     for    purposes      of     the
    vulnerable-victim           enhancement,      insofar     as     their       need     for
    medication vitiates their ability to "help themselves" or "to
    detect or prevent against the [relevant harm]."                    
    591 F.3d at 30
    (quoting the sentencing court's findings).                   Cf. Bradley, 
    644 F.3d at 1289
     (concluding that victims "were vulnerable due to their
    medical condition -- AIDS and hemophilia"); Milstein, 
    401 F.3d at 74
     (concluding that "women with fertility problems and . . .
    Parkinson's     disease patients"           constituted      vulnerable      victims).
    Here, the patients receiving MPA injections into their spine were
    in   a   similarly        "unusually    vulnerable"     position,      see     U.S.S.G.
    - 25 -
    § 3A1.1 cmt. n.2, by virtue of their physical condition and the
    circumstances of the procedure.    Thus, we discern no error in the
    District Court's application of the enhancement.
    B.
    Chin also argues that the record fails to show that Chin
    knew or should have known of the victims' unusual vulnerability.
    In support of this contention, Chin appears to argue that the "knew
    or should have known" requirement in § 3A1.1(b) per se precludes
    the enhancement's application to him because he was merely a
    supplier of medical products to health care facilities and thus
    stood at a remove from the patients who were harmed by the
    contaminated drugs that NECC compounded.      But, insofar as Chin in
    pressing this contention is making a legal argument about the
    proper construction of the Guideline, such that our review is de
    novo, see Chin I, 965 F.3d at 50, we must reject the contention.
    Nothing in the text of the provision supports the per se
    exclusion of medical suppliers.        Thus, nothing in the text bars
    the application of the enhancement to a medical supplier who knew
    or should have known that he was distributing unsafe drugs that
    would be used by vulnerable patients.        See Bradley, 
    644 F.3d at 1289
    ; Milstein, 
    401 F.3d at 74
    ; see also United States v. Moran,
    
    778 F.3d 942
    , 952–53, 978–79 (11th Cir. 2015) (applying "vulnerable
    victim" enhancement to defendant CEO of medical facility who was
    not directly involved in patient care).       Rather, the text merely
    - 26 -
    provides that the enhancement applies to an offender who "knew or
    should have known that a victim of the offense was a vulnerable
    victim."   U.S.S.G. § 3A1.1(b).
    Chin next argues that the enhancement may not be applied
    to him by referencing the application note to it.         The application
    note explains that "[t]he adjustment would apply, for example, in
    a fraud case in which the defendant marketed an ineffective cancer
    cure." U.S.S.G. § 3A1.1 cmt. n.2. Chin contends that, in addition
    to the fact that he was not himself "a health care provider," he
    also is not analogous to a fraudster who marketed an ineffective
    cancer cure.      And that is so, Chin contends, because NECC had
    previously sold lots of MPA without incident, and the record fails
    to show by a preponderance of the evidence that he "kn[e]w that
    any of the drugs he compounded were contaminated." He thus appears
    to be contending that, absent a showing by a preponderance of the
    evidence of his intent to defraud the victims, there can be no
    finding that Chin knew or should have known that the victims were
    vulnerable.
    But,   even   if   we   understand   this   argument   to   be   a
    contention about the proper way to construe the Guideline, such
    that our review is de novo rather than for clear error, Chin I,
    965 F.3d at 50, we reject it.       The text of the Guideline provides
    no basis for concluding that the "knew or should have known"
    standard may be satisfied only by a finding that the defendant
    - 27 -
    intended to defraud his victims.             Nor does the application note,
    in giving an example of how the Guideline could be satisfied,
    purport to suggest that there is a requirement to prove an intent
    to defraud.        Instead, the Guideline merely requires that it be
    shown by a preponderance of the evidence that, in engaging in the
    conduct relevant to his offense, Chin knew or should have known
    that vulnerable patients would be using the unsafe drugs he
    produced at NECC.
    Finally, Chin appears to be arguing that, even if the
    Guideline    may    be    applied   to   a   medical    supplier    who   was    not
    defrauding patients, the District Court clearly erred in finding
    that   he   "knew    or    should   have     known"    that   the   victims     were
    vulnerable.     Here, his assertion is that there is an absence of
    record evidence of his individualized knowledge of both who the
    end users of NECC drugs would be and that the drugs that NECC
    shipped were contaminated.          But, we cannot agree.
    The District Court supportably found that "[e]vidence
    introduced at trial, including internal NECC emails, brought home
    the certainty that Chin and other of the coconspirators were fully
    aware of the risks involved in the distribution of defective
    drugs."     Chin's resume advertised his "[k]nowledge of USP[-]797,"
    and the first sentence of the introduction to USP-797 reads, "[t]he
    objective of this chapter is to describe conditions and practices
    to prevent harm, including death, to patients that could result
    - 28 -
    from . . . microbial contamination . . . ."         And, Chin himself
    concedes in his brief to us that he "was aware that there were
    deficiencies in testing and the condition of the compounding lab
    and that all the USP-797 protocols were not being strictly adhered
    to."       Indeed, evidence was presented at trial that tended to show
    that Chin was aware of the particularly grave risks associated
    with injecting contaminated medication into a patient's spinal
    fluid, as opposed to other routes of drug administration.5       Thus,
    the District Court did not clearly err in concluding that Chin
    knew or should have known that downstream recipients of MPA from
    NECC were particularly vulnerable.
    IV.
    For the foregoing reasons, we affirm Chin's sentence.
    An NECC compounding technician testified that Chin, when
    5
    training him in clean-room sanitation practices, "stressed that
    with the injectable drugs [there] was even more a need to be
    vigilant in terms of cleanliness because you're bypassing the
    immune system, basically injecting it right into the cerebral
    spinal fluid, whatever it is, and it's going to go straight up
    into their brain."     Additionally, the second sentence of the
    introduction to USP-797 explains that "[c]ontaminated [compounded
    sterile preparations] are potentially most hazardous to patients
    when administered into body cavities, central nervous and vascular
    systems, eyes, and joints and when used as baths for live organs
    and tissues."
    - 29 -