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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10804
Non-Argument Calendar
________________________
D.C. Docket No. 3:08-cr-00027-LC-EMT-1; 3:13-cr-00095-LAC-EMT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT L. IGNASIAK, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(March 30, 2020)
Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
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Robert Ignasiak, Jr., proceeding pro se, challenges his convictions and 360-
month prison sentence for healthcare fraud, dispensing controlled substances, and
failure to appear for a jury trial.
I.
In 2008, a federal grand jury indicted Ignasiak on 54 counts related to the
execution of a scheme to defraud Medicaid and Blue Cross Blue Shield of Florida.
Several of these counts charged Ignasiak with unlawfully dispensing a variety of
controlled substances. At trial, the government’s theory of prosecution was that
Ignasiak had prescribed unnecessary or excessive quantities of controlled
substances without a legitimate medical purpose and “outside the usual course of
professional practice.” United States v. Ignasiak,
667 F.3d 1217, 1219 (11th Cir.
2012). Two of the counts further charged that “death resulted” from the use of
controlled substances prescribed to two patients, M.B. and B.E.
Id.
Dana Easterly, the widower of patient B.E., testified at trial that Ignasiak
began treating his wife within a few months after they moved to Florida from
Louisiana in 1999.
Id. at 1223–24. B.E. had been in a tragic car accident in 1994,
in which her nine-year old daughter was killed and B.E. was ejected through the
windshield headfirst, causing serious injuries to her face.
Id. at 1224. Before
seeing Ignasiak, B.E. had several reconstructive surgeries and had a history of
major depression, anxiety, seizures, peptic ulcers, and fainting spells.
Id. B.E.’s
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husband and son both testified that the prescriptions Ignasiak wrote B.E. for
Lortab, Valium, Duragesic patches, and Xanax made her lethargic and
nonfunctional.
Id. On the day B.E. died, she “seemed fine,” but when her husband
returned home from work she was slumped over on the sofa bed and paramedics
were not able to revive her.
Id. B.E.’s autopsy determined that she died of
“multiple drug intoxication.”
Id. The autopsy report did not reveal the levels of
controlled substances in her system at the time of her death.
Id. However, hospital
records showed that the Xanax in B.E.’s system was in the therapeutic range but
she had other drugs in her system that were slightly higher than the therapeutic
range.
Id. The autopsy was unable to rule out the possibility that B.E. died from a
stroke she suffered three weeks prior to her death.
Id.
The government also presented the testimony of another medical examiner,
who had conducted an autopsy of patient M.B.
Id. at 1225. He testified that M.B.
was a “woman who looked like she had been having a downhill path from a
medical viewpoint, and was heading towards death.”
Id. (alterations adopted).
Ultimately, M.B.’s autopsy determined that M.B. died of complications from
multiple drugs in her system, including toxic levels of diazepam and morphine.
Id.
Leading up to M.B.’s death, Ignasiak had been prescribing her hydrocodone and
diazepam on a monthly basis. And during M.B.’s last office visit, at which she
sought treatment for a broken toe, Ignasiak prescribed 50 morphine pills for her.
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M.B. filled the morphine prescription on September 3, 2003, and died just days
later.
After a nineteen-day trial, the jury found Ignasiak guilty of 43 of the 54
counts charged. He was sentenced to a total term of 292-months imprisonment.
Id. at 1219.
On January 19, 2012, this Court reversed and vacated Ignasiak’s sentence
and remanded to the district court for further proceedings.
Id. at 1231. On April
19, 2012, this Court granted Ignasiak’s motion for release from custody. The
district court scheduled a retrial for December 3, 2012, but sometime in November,
Ignasiak faked death by suicide, absconded from pretrial supervision, and fled the
state. After he was captured in September 2013, Ignasiak ultimately pled guilty to
several charges, but not to the two counts involving the deaths of B.E. and M.B.
He was sentenced to a total term of 360 months.
Ignasiak did not appeal directly from that judgment, but instead filed a
petition for habeas corpus alleging, among other things, that his counsel was
ineffective for failing to file a direct appeal. The district court agreed and vacated
the earlier judgments. It then imposed the same sentences so that Ignasiak could
file an out-of-time appeal.
In this appeal, Ignasiak argues that the district court erred in accepting his
guilty plea because it was unknowing and involuntary. Second, Ignasiak argues
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the district court erred in allowing his reprosecution. Finally, Ignasiak argues that
the district court erred in finding the drug weight for which he was responsible and
incorrectly applied the Sentencing Guidelines in determining his sentencing range.
II.
Ignasiak first claims his plea was not voluntary because it was “insincere”
and ambivalent. Where a defendant claims for the first time on appeal that the
district court erred during his Rule 11 plea colloquy, we review for plain error.
United States v. Monroe,
353 F.3d 1346, 1349 (11th Cir. 2003). In order to
determine whether a defendant’s rights were substantially affected by a Rule 11
error, we have examined whether the overall plea colloquy adequately addresses
the three “core concerns” of Rule 11.
Id. at 1354. We examine whether (1) the
plea was free from coercion; (2) the defendant understood the nature of the
charges; and (3) the defendant was aware of the direct consequences of his guilty
plea.
Id. The defendant bears a heavy burden to show the district court erred
during his plea colloquy. United States v. Davila,
749 F.3d 982, 996 (11th Cir.
2014) (per curiam).
Ignasiak’s assertion that his guilty plea was “insincere” is not enough to
overcome this burden. He must show more than that he “may be reluctant to tell
the truth.”
Davila, 749 F.3d at 996.
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Second, Ignasiak implies that because the district court did not tell him about
the impact Burrage v. United States,
571 U.S. 204,
134 S. Ct. 881 (2014), had on
his plea agreement, his guilty plea was not knowing or voluntary. Burrage
changed the burden required under the CSA to show that the particular drugs
distributed were the proximate cause of death.
See 571 U.S. at 216, 134 S. Ct. at
891 (holding but-for causation was required to support conviction under “death
results” penalty enhancement provision). Ignasiak claims the district court
“expressly rejected” this causation definition, thereby misinforming Ignasiak “of
the true nature of the charges against him.” If Ignasiak had known the true nature
of the charges, he claims he would not have pled guilty.
However, Ignasiak pled guilty on January 14, 2014. The Supreme Court
issued its decision in Burrage on January 27, 2014, so the district court had no
reason to inform Ignasiak of the Burrage decision. Moreover, a guilty plea is not
rendered involuntary by a subsequent change in the law. See Brady v. United
States,
397 U.S. 742, 757,
90 S. Ct. 1463, 1473 (1970). The Supreme Court has
expressly recognized that “the decision to plead guilty is [often] heavily influenced
by the defendant’s appraisal of the prosecution’s case against him and by the
apparent likelihood of securing leniency should a guilty plea be offered and
accepted.”
Id. at 756, 90 S. Ct. at 1473. This is the case here. Ignasiak noted that
he pled guilty “in consideration for” the dismissal of the two counts related to
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B.E.’s and M.B.’s deaths. But it is well-established that a defendant “is not
entitled to withdraw his plea merely because he discovers long after the plea has
been accepted that his calculus misapprehended the quality of the State’s case or
the likely penalties attached to alternative courses of action.”
Id. at 757, 90 S. Ct.
at 1473. The district court did not commit any error and Ignasiak’s rights were not
substantially affected by any purported failure to inform Ignasiak about the
Supreme Court’s decision in Burrage.
III.
Although Ignasiak’s knowing and voluntary guilty plea waives all non-
jurisdictional defects in the proceedings, he may still challenge the indictment on
jurisdictional grounds. United States v. Saac,
632 F.3d 1203, 1208 (11th Cir.
2011). In other words, “a guilty plea does not waive the right of an accused to
challenge the constitutionality of the statute under which he is convicted.”
Id.
(quotation marks omitted and alterations adopted).
Constitutional objections not raised before the district court are reviewed for
plain error. United States v. Moriarty,
429 F.3d 1012, 1018 (11th Cir. 2005) (per
curiam). A party may establish plain error by showing that: (1) there was an error;
(2) the error was plain or obvious; (3) the error affected his substantial rights in
that it was prejudicial and not harmless; and (4) the error seriously affected the
fairness, integrity, or public reputation of the district court proceedings. United
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States v. Olano,
507 U.S. 725, 732,
113 S. Ct. 1770, 1776 (1993). Ignasiak
challenges his indictment on two grounds.
A. Neither the Tenth Amendment Nor the CSA Bar the Indictment.
Ignasiak argues that his actions comported with Florida’s standards
governing the practice of medicine. He says that both the Tenth Amendment and
Gonzales v. Oregon,
546 U.S. 243,
126 S. Ct. 904 (2006),1 prevent the government
from enforcing the CSA because the regulation of the practice of medicine is a
right reserved to states, not the federal government. Relatedly, Ignasiak argues that
his conviction violates the CSA because the CSA “forbids the Attorney General or
the courts from creating national standards for practicing medicine.”
We have held that “Congress’s valid exercise of authority delegated to it
under the Constitution does not violate the Tenth Amendment.” United States v.
Williams,
121 F.3d 615, 620 (11th Cir. 1997) (quotation marks omitted). It is
firmly established that Congress has the “power to regulate purely local activities
1
In Gonzales, the Supreme Court held that the CSA does not authorize the United States
Attorney General to prohibit doctors from dispensing controlled substances for assisted suicide
in the face of a state medical regime permitting such conduct and given the CSA’s silence on the
practice of medicine
generally. 546 U.S. at 274–75, 126 S. Ct. at 925. Gonzales involved an
interpretive rule issued by the Attorney General that said a physician violates the CSA if he
prescribes, dispenses, or administers controlled substances to assist suicide.
Gonzales, 546 U.S.
at 254, 126 S. Ct. at 913–14. That interpretive rule conflicted with an Oregon law that allowed
physicians to dispense or prescribe a lethal dose of drugs at the request of a terminally ill patient.
Id. at 249, 126 S. Ct. at 911. The Supreme Court explained “there is no question that the Federal
Government can set uniform national standards” of medical practice,
id. at 271, 126 S. Ct. at
923, but the Court concluded that the CSA “manifests no intent to regulate the practice of
medicine generally,”
id. at 270, 126 S. Ct. at 923.
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that are part of an economic ‘class of activities’ that have a substantial effect on
interstate commerce.” Gonzalez v. Raich,
545 U.S. 1, 17,
125 S. Ct. 2195, 2205
(2005). We have recognized that one such activity—local distribution and
possession of controlled substances—has a substantial and direct effect upon
interstate commerce. United States v. Collier,
478 F.2d 268, 272–73 (5th Cir.
1973). 2 And in that circumstance, we specifically rejected the argument that the
Tenth Amendment invades a state’s power to control medical practice.
Id. We
reject Ignasiak’s Tenth Amendment argument for the same reasons.
Similarly, our precedent compels the conclusion that the CSA is a valid
exercise of federal power.
Raich, 545 U.S. at 9, 125 S. Ct. at 2201; United States
v. Joseph,
709 F.3d 1082, 1094, 1103 (11th Cir. 2013) (distinguishing Gonzales v.
Oregon because Gonzales did not determine whether the jury was required to find
the defendants acted in accord with an accepted standard of professional practice).
Under the CSA, except as authorized, it is unlawful for a person to knowingly or
intentionally distribute or dispense a controlled substance. 21 U.S.C. § 841(a)(1).
One authorized exception permits licensed doctors to dispense controlled
substances with prescriptions. 21 U.S.C. § 829(a), (b). In prosecuting a doctor
under § 841, the question is not whether a doctor’s activities comported with a
2
In Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
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single national standard of medical practice, but whether he “dispensed [or
distributed] controlled substances for other than legitimate medical purposes in the
usual course of professional practice, and that he did so knowingly and
intentionally.”
Joseph, 709 F.3d at 1094, 1103; see 21 C.F.R. § 1306.04(a). The
government was therefore required to “prove that the actions of the defendant[]
were inconsistent with any accepted standard of professional practice.”
Joseph,
709 F.3d at 1095.
The government did just that. The indictment charged Ignasiak with
prescribing large amounts of controlled substances outside the usual course of
medical practice and for other than legitimate medical purposes. This language in
the indictment tracks the CSA and does not suggest Ignasiak’s conduct must be
evaluated against a single national standard of medical practice. See
Joseph, 709
F.3d at 1094, 1103.
The district court did not plainly err in allowing Ignasiak’s prosecution
under the CSA because Congress acted within its constitutional authority when
enacting the CSA and, thus, his prosecution did not violate the Tenth Amendment.
B. Ignasiak’s Reprosecution Does Not Violate the Double Jeopardy Clause.
Third, Ignasiak argues the government’s second prosecution of him violates
the Constitution’s Double Jeopardy Clause. We review double jeopardy claims not
raised before the district court for plain error. United States v. Bobb,
577 F.3d
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1366, 1371 (11th Cir. 2009). The Fifth Amendment’s Double Jeopardy Clause
guarantees against (1) a second prosecution for the same offense after acquittal, (2)
a second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense.
Id.
However, the Double Jeopardy Clause is not an absolute bar to successive
trials. Generally, the Clause does not bar reprosecution of a defendant whose
conviction is overturned on appeal. Justices of Bos. Mun. Court v. Lydon,
466
U.S. 294, 308,
104 S. Ct. 1805, 1813 (1984). Retrial is permitted after a conviction
is reversed on appeal if the grounds on which the case was reversed are unrelated
to the defendant’s guilt or innocence. Montana v. Hall,
481 U.S. 400, 402–03,
107
S. Ct. 1825, 1826 (1987) (per curiam); see also United States v. Adkinson,
135
F.3d 1363, 1379 n.46 (11th Cir. 1998) (noting convictions reversed for trial error
are subject to retrial). In the previous appeal, this Court overturned Ignasiak’s
conviction based on an evidentiary ruling that violated the Confrontation Clause.
Ignasiak, 667 F.3d at 1231. That violation is not related to Ignasiak’s guilt or
innocence, so the government was not barred from reprosecution.
IV.
Finally, Ignasiak challenges the calculation of his guideline sentence. We
review de novo the district court’s application of the Sentencing Guidelines,
United States v. Norris,
452 F.3d 1275, 1280 (11th Cir. 2006), but we review for
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clear error the factual determination on the quantity of drugs used to establish a
base offense level for sentencing, United States v. Simpson,
228 F.3d 1294, 1298
(11th Cir. 2000). When a defendant objects to a factual finding that is used in
calculating his guideline sentence, such as drug amount, the government bears the
burden of establishing the disputed fact by a preponderance of the evidence.
United States v. Rodriguez,
398 F.3d 1291, 1296 (11th Cir. 2005).
Ignasiak first argues that his Presentence Investigation Report’s (“PSI”)
reference to the dismissed charges related to the deaths of B.E. and M.B. rendered
his guideline range inaccurate because the information about the patients’ deaths
should not have been considered for purposes of increasing his sentence. This
argument is not supported by the record. In calculating Ignasiak’s base offense
level, the PSI used the drug weight but did not mention or take into consideration
the death-related charges in calculating the guideline range. Those charges were
mentioned only at the end of the PSI in the discussion of reasons for a possible
departure. The district court did not depart from the guidelines here, so the deaths
did not increase Ignasiak’s sentence.
Second, Ignasiak claims that the district court committed a procedural error
in calculating his sentence by applying the wrong guideline methodology in
determining his relevant conduct and selecting an offense level that was too high.
He relies on the Sentencing Commission’s amendment to U.S.S.G. § 1B1.3 (2015),
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which altered the guideline methodology for determining “relevant conduct.” He
claims that amendment applies retroactively to his case and, as such, the district
court failed to (1) conduct a “relevant conduct hearing” and (2) use methodology
required by the Guidelines. He argues that, if the district court had properly
considered his relevant conduct, the drug weight in the PSI would have been lower.
The base offense level for a drug distribution offense is calculated by
determining the quantity of drugs attributable to a defendant. See U.S.S.G.
§ 2D1.1(a)(5) (2013). The Guidelines also provide that types and quantities of
drugs not specified in the conviction are to be included, as relevant conduct, in
determining the offense level if they were part of the same course of conduct,
common scheme, or plan as the count of conviction.
Id. § 1B1.3(a)(2), comment.
(n. 3) (2013);
id. § 2D1.1, comment. (n. 5) (2013). “For two or more offenses to
constitute part of a common scheme or plan, they must be substantially connected
to each other by at least one common factor, such as common victims, common
accomplices, common purpose, or similar modus operandi.”
Id. § 1B1.3,
comment. (n. 9(A)) (2013). We broadly interpret the provisions of the relevant-
conduct guideline. United States v. Behr,
93 F.3d 764, 765 (11th Cir. 1996) (per
curiam). All of a defendant’s relevant conduct, including acquitted conduct and
conduct not mentioned in an indictment, may be considered at sentencing. United
States v. Hamaker,
455 F.3d 1316, 1338 (11th Cir. 2006).
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The PSI recommended that Ignasiak’s base level be set at 36, pursuant to
U.S.S.G. § 2D1.1 (2008)—the guideline level applying to 10,000 to 30,000
kilograms of marijuana—because Ignasiak prescribed 81,830 pills of hydrocodone
and 44,792 pills of oxycodone, the total equivalent of 13,917.8 kilograms of
marijuana. It also recommended that the base offense level be adjusted upward
four levels for vulnerable victims (addicts), see § 3A1.1, two levels for abuse of a
special skill (the practice of medicine), see § 3B1.3, and two levels for obstruction
of justice (absconding and failing to appear for trial), see § 3C1.1. With a total
offense level of 44 and a criminal history category of I, Ignasiak’s resulting
guideline range would be life imprisonment. Ignasiak filed written objections to
this calculation of the drug amount and raised these objections again at sentencing.
The district court found the PSI to be accurate and ordered Ignasiak to serve a total
term of 360 months. On appeal, Ignasiak does not dispute the drug quantities, but
instead claims that the district court did not adhere to the methodology required by
the Guidelines and therefore did not perform the “proper relevant-conduct
calculation” for the “drug-weight portion” of his sentence.
The district court did not clearly err in considering the totality of Ignasiak’s
conduct. Ignasiak pled guilty to his involvement in a scheme of prescribing drugs
to patients who did not need them, for his own gain, while also defrauding
healthcare companies. At sentencing he conceded that, under the CSA, courts
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“must take into account . . . all controlled substances for which the defendant’s
relevant conduct may be attributable.” The drugs Ignasiak prescribed were all part
of an ongoing series of offenses charged in the indictment. Each offense involved
nearly identical conduct. Because the prescriptions were part of the same course of
conduct, the district court properly considered the drug weight of all the
prescriptions even though only a portion of them were charged in the indictment.
See U.S.S.G. § 1B1.3, comment. (n.3).
Neither did the district court err in calculating Ignasiak’s sentence under the
Guidelines. The majority of the drug weight for which Ignasiak was prosecuted
came from oxycodone, which was based on fewer prescriptions and was charged
only once in the indictment. However, the presence of oxycodone in the drug
weight calculations does not necessarily render the estimates unreasonable. The
record showed that Ignasiak had over 3,000 patients, 95% of whom were
prescribed drugs beyond the usual course of professional practice. The total drug
weight for which Ignasiak was prosecuted was based on the prescriptions from
only 55 of his patients—roughly 2% of the total patients—and was equivalent to
over 14,000 kilograms of marijuana. Ignasiak does not dispute that he prescribed
the drugs considered at sentencing, and if the government had chosen to calculate
the drug weight for any other patients not included in the indictment, the total drug
weight would likely have been far higher.
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Ignasiak’s reliance on the amendment to U.S.S.G. § 1B1.3 (2015), is also
unavailing. The government correctly points out that the amendment changed only
the provision dealing with “jointly undertaken criminal activity.” See United
States v. Presendieu,
880 F.3d 1228, 1245 (11th Cir. 2018). In his reply brief,
Ignasiak argues that because nurses, patients, and patient support groups were
involved in his offense, they shared responsibility and he should not have been
held wholly responsible for his conduct. But we do not address arguments made
for the first time in a reply brief. United States v. Levy,
379 F.3d 1241, 1244 (11th
Cir. 2004) (per curiam).
Because the district court did not clearly err in determining the quantity of
drugs for which Ignasiak was responsible and did not err in applying the
Guidelines, we affirm Ignasiak’s sentence.
AFFIRMED.
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