United States v. Daniel Fearnow , 468 F. App'x 466 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0158n.06
FILED
No. 10-6034 Feb 08, 2012
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff - Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF TENNESSEE
)
DANIEL FEARNOW, ) OPINION
)
Defendant - Appellant. )
______________________________
Before: MCKEAGUE and WHITE, Circuit Judges; BARRETT, District Judge.*
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Dr. Daniel Fearnow
appeals his 262-month sentence imposed after he pleaded guilty of intentionally distributing
controlled substances and conspiracy to distribute controlled substances. 21 U.S.C. §§
841(a)(1) & 846. We AFFIRM.
I.
In late 2008, Drug Enforcement Agency (“DEA”) investigators received information
that Fearnow, a doctor working at Wickman Family Medical Care Center (“Wickman” or
“the clinic”) in Shelby County, Tennessee, was issuing prescriptions to “patients” in
exchange for cash. The DEA solicited confidential informants to engage in audio- and
video-recorded transactions with Fearnow from February to October 2009, during which
*
The Honorable Michael R. Barrett, United States District Judge for the Southern
District of Ohio, sitting by designation.
Fearnow prescribed controlled substances for no apparent medical purpose. On October 28,
2009, the government charged Fearnow with one count of conspiracy to distribute controlled
substances and eleven counts of intentionally distributing controlled substances. 21 U.S.C.
§§ 846, 841(a)(1). On February 12, 2010, Fearnow pleaded guilty to all counts.
According to the Pre-Sentence Report (“PSR”), a patient typically provided Fearnow
a list of names of persons who were not present – sometimes with as many as thirty different
names – and Fearnow would write prescriptions for the persons named. In exchange, the
patient would pay Fearnow a fee, usually between $100 to $150. The patient would then
resell the drugs or prescriptions. The investigation revealed that approximately seventy-five
percent of Fearnow’s “patients” purchased fraudulent prescriptions, resulting in a total of
over 25,000 fraudulent prescriptions.
In the usual case, a prescription-seeking patient would enter the clinic and inform a
receptionist or nurse that he or she wished to see Fearnow, and the Wickman staff would
collect a co-pay for the visit.1 Fearnow admitted that he sometimes used nurses and student
interns to assist him, for example, by taking the list of names from the patient and, after
Fearnow had written the prescriptions, exchanging the prescriptions for cash. One
confidential source explained that on one occasion, April, a woman appearing to be a nurse,
advised that Fearnow was not seeing “that type of patient face-to-face because the police had
been heavy in the area.” Likewise, a medical assistant explained that he was aware Fearnow
1
Fearnow explained that Nancy Wickman, co-owner of the clinic, or other staff,
collected the co-pay fees. Fearnow did not receive any money from the co-pay fees.
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was writing illegal prescriptions and that almost everyone in the office had knowledge of or
assisted Fearnow with his illegal activity.
The sentencing hearing was held on August 5, 2010. The PSR recommended a four-
level enhancement pursuant to United States Sentencing Guidelines (“U.S.S.G”) § 3B1.1(a)
based on Fearnow’s status as an organizer or leader of the criminal conspiracy. Over
Fearnow’s objection, the district court found the enhancement applicable. Fearnow argued
for a downward departure based on alleged sentencing entrapment, which the district court
rejected. The district court likewise rejected several other arguments for a downward
departure. The district court then considered the § 3553(a) factors. After application of the
§3B1.1(a) enhancement for Fearnow’s role and a three-level downward adjustment for
acceptance of responsibility, the Guidelines recommended a range of 262-327 months’
imprisonment. The district court opted for the lowest Guidelines-range sentence – 262
months. This appeal followed.
II.
Fearnow contends the district court erred by imposing a four-level enhancement
pursuant to U.S.S.G. § 3B1.1(a). This court has struggled over whether to review a district
court’s application of §3B1.1 deferentially or de novo. United States v. Young, 553 F.3d
1035, 1039 (6th Cir. 2009) (noting confusion). Because the district court did not err under
either standard, we join prior panels and decline to resolve this issue. See, e.g., United States
v. Walls, 546 F.3d 728, 734 (6th Cir. 2008).
U.S.S.G. § 3B1.1(a) provides for a four-level enhancement “[i]f the defendant was
an organizer or leader of a criminal activity that involved five or more participants or was
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otherwise extensive.” In order for this enhancement to apply, the government must prove
by a preponderance of the evidence Fearnow’s role as a leader or organizer. United States
v. Bennett, 291 F.3d 888, 897 (6th Cir. 2002). In considering the applicability of an
enhancement pursuant to § 3B1.1, courts weigh the following factors:
the exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right
to a larger share of the fruits of the crime, the degree of participation in
planning or organizing the offense, the nature and scope of the illegal activity,
and the degree of control and authority exercised over others.”
United States v. Lalonde, 509 F.3d 750, 765 (6th Cir. 2008); see also U.S.S.G. § 3B1.1, cmt.,
app. n. 4. This court has explained that “a defendant must have exerted control over at least
one individual within a criminal organization for the enhancement of §3B1.1 to be
warranted.” Lalonde, 509 F.3d at 765. Hence, “[m]erely playing an essential role in the
offense is not equivalent to exercising managerial control over other participants and/or the
assets of a criminal enterprise.” Id. (citation omitted).
Although Fearnow’s case is somewhat atypical insofar as he did not have any control
over the drugs after he issued the prescriptions, United States v. Swanberg, 370 F.3d 622 (6th
Cir. 2004), the district court did not err in applying the enhancement. A defendant does not
need to satisfy each factor in order for the enhancement to be appropriate. United States v.
Gates, 461 F.3d 703, 709 (6th Cir. 2006). Fearnow does not dispute that his criminal
conduct involved at least five participants. U.S.S.G. § 3B1.1 cmt., app. n.1 (explaining that
a “participant” does not need to have been convicted). Additionally, Fearnow exercised
managerial authority over staff members at Wickman, including nursing student interns, who
assisted him in accomplishing the offenses. See United States v. Baker, 559 F.3d 443, 449
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(6th Cir. 2009) (noting “a defendant whose sentence is enhanced under § 3B1.1(a) need only
supervise or manage one of the five or more other participants”) (citation omitted). As the
district court explained at the sentencing hearing:
Within this clinic where the doctor was working were various people who
were employees of the clinic but who were nevertheless, accommodating the
doctor by taking money, assigning patients, and so forth. . . .
Now, he doesn’t have to employ these individuals himself. He doesn’t have
to have been the manager of the clinic as such; but they were accommodating
him and serving him within the clinic is my reading of the facts, the
uncontested facts, of the presentence report. . . .
He managed to get [the staff] to do his work for him which is set out in quite
a number of places in the presentence report. I’ve pointed to several of them.
And one of the disturbing things is it apparently also includes some medical
interns who showed up and were roped into this enterprise as well.
Tr. at 20-28. Although this is not the typical drug-distribution case, Fearnow’s argument that
he exercised no managerial control is unavailing, and the enhancement nonetheless applies.
Finally, contrary to his assertion, Fearnow is not equally or less culpable than the recipients
of the prescriptions.
The district court did not err in applying the § 3B1.1(a) enhancement.
III.
Fearnow next argues that the district court erred by not granting a downward
departure based on alleged sentencing entrapment or sentencing manipulation. This court
generally does not review a refusal to grant a downward departure unless “the district court
(1) improperly computed the guideline range; (2) was unaware of its discretion to depart
downward from the guideline range; or (3) imposed the sentence in violation of law or as a
result of the incorrect application of the Sentencing Guidelines.” United States v. May, 399
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F.3d 817, 827 (6th Cir. 2005) (quotation marks and citation omitted). Fearnow contends that
although the government had enough evidence to arrest and convict him early on in the
investigation, the DEA continued to conduct controlled buys for the sole purpose of boosting
the quantity and type of prescriptions Fearnow sold and thereby increase his sentence.
Assuming such arguments are cognizable in this circuit, see, e.g., United States v.
Guest, 564 F.3d 777, 781 (6th Cir. 2009) (“The Sixth Circuit has already addressed
sentencing entrapment and sentence manipulation . . . and reaffirmed that the Sixth Circuit
does not recognize either defense.”), the facts of this case do not support a finding of
sentencing enhancement or entrapment. As the district court explained, Fearnow’s will was
not overcome by outrageous government conduct:
There’s no proof of any bad faith in this record by the Government. What
you’re asking me to do is infer from the lapse of time, the eight months, that
there must have been entrapment. Well, “entrapment” is probably not the
right word for it; but there must have been a piling on or an attempt to
exacerbate the offense on the part of the Government by letting this crime go
on.
An equally fair or perhaps more reasonable inference was that, first, the
government didn’t feel it had enough proof in this matter of this sort. We
have hindsight now. We know Dr. Fearnow immediately confessed his
crime, pretty much, and we know he pled guilty to an indictment in this case,
but, you know, when you’re sitting out there in the field, you have no idea of
that.
The second reasonable inference was the Government wanted to know the
scope of what was going on and who was involved. So, it carried out an
extensive investigation over time . . . .
As far as entrapment was concerned, on this record there’s no proof that
anybody needed to entrap Dr. Fearnow. He willingly, he readily wrote
prescriptions at the drop of a hat for money. Anybody could walk in without
examination, it appears to me, and get a prescription written for somebody
else and extensively, for multiple other people who were never examined.
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I don’t want to beat that point to death except to say it certainly doesn’t look
like entrapment to me.
The first response to entrapment is that it’s not a factor for downward
departure.
My second response is this isn’t a case of entrapment.
Tr. at 40-41. See generally Sosa v. Jones, 389 F.3d 644, 648-49 (6th Cir. 2004) (“Under this
theory, ‘sentencing entrapment occurs where outrageous government conduct overcomes the
will of a defendant predisposed to deal only in small quantities of drugs, for the purpose of
increasing the amount of drugs and the resulting sentence imposed against that defendant.’”)
(citation omitted).
Fearnow provides no persuasive support for the proposition that the government’s conduct
here constitutes sentencing entrapment or manipulation, and his arguments are therefore
unavailing. We find no error in the district court’s refusal to depart.
IV.
Lastly, Fearnow challenges the substantive reasonableness of the 262-month sentence
the district court imposed. In reviewing for substantive reasonableness, this court considers
the totality of the circumstances and inquires whether a district court has abused its
discretion. United States v. Tristan-Madrigal, 601 F.3d 629, 633 (6th Cir. 2010). A
sentence is substantively unreasonable if a district court “selects a sentence arbitrarily, bases
the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives
an unreasonable amount of weight to any pertinent factor.” United States v. Baker, 559 F.3d
443, 448 (6th Cir. 2009).
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The crux of Fearnow’s argument is that the district court did not adequately consider
and explain the § 3553(a) factors in imposing the sentence. More specifically, Fearnow
contends the district court did not give due consideration to his history and characteristics,
including that he was raped when he was a young child and his “unblemished employment
record as a physician.” Fearnow emphasizes – and the district court noted – he is no longer
a threat to society and imprisonment will not benefit him and, further, that Fearnow is
unusually susceptible to abuse in prison.
Because Fearnow’s sentence is within the advisory range of the Guidelines, this court
affords it a rebuttable presumption of reasonableness. See United States v. Christman, 607
F.3d 1110, 1117 (6th Cir. 2010). A review of the sentencing hearing transcript reveals that
the district court considered each of Fearnow’s arguments and explained its rationale for
rejecting them. The district court also carefully considered the § 3553(a) factors, including
the seriousness of the offense and the history and characteristics of the defendant. United
States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006) (internal quotation marks omitted);
18 U.S.C. § 3553(a).
The district court stated that “these are extraordinarily serious offenses for drug
crimes. They are among the most serious I have seen.” Tr. at 106. The district court further
emphasized the deleterious effect of Fearnow’s crimes on the public, noting the number of
prescriptions Fearnow sold. Id. at 110. The district court also specifically discussed some
of Fearnow’s positive qualities. Although the district court acknowledged that there would
be no benefit to Fearnow from imprisonment and that Fearnow posed no danger to society,
the district court also recognized a “strong need for deterrence in this case, which is to say
8
there is a need to prevent others from engaging in this sort of conduct.” Id. at 117.
Ultimately, the district court concluded that the lowest within-Guidelines sentence was
appropriate. The district court did not abuse its discretion.
V.
For the foregoing reasons, we AFFIRM Fearnow’s sentence.
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