Hays, Jon R. v. United States ( 2005 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 04-2456
    JON RILEY HAYS,
    Petitioner-Appellant,
    v.
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ____________
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 03 C 310—David R. Herndon, Judge.
    ____________
    ARGUED DECEMBER 6, 2004—DECIDED FEBRUARY 10, 2005
    ____________
    Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
    KANNE, Circuit Judge. Jon Riley Hays, a licensed medical
    doctor, pled guilty to two charges stemming from his illegal
    use of OxyContin. Count I charged Hays with tampering
    with a consumer product, and Count II charged him with
    possession of a controlled substance by misrepresentation
    or fraud. Hays was sentenced to fifty-one months in prison
    for Count I and a concurrent sentence of forty-eight months
    for Count II. Hays now asks for collateral relief under 
    28 U.S.C. § 2255
    , claiming that his attorneys provided ineffec-
    tive assistance and that his plea was not voluntary because
    he did not understand the nature of the charges against
    him. The district court denied his motion. For the reasons
    set forth in this opinion, we affirm.
    2                                                No. 04-2456
    I. History
    Hays practiced medicine in several towns in rural Illinois.
    In early 2000, he was involved in a car accident which
    caused injury to his back. He began taking OxyContin to
    relieve his pain and became addicted to the drug. Although
    the recommended oral dosage was 20 to 40 mg per day,
    Hays would often inject approximately 300 mg of the drug
    in a day.
    In order to gain access to such a large amount of
    OxyContin, Hays prescribed it to his patients and then stole
    the drug from them during house calls. How he did this is
    in some dispute. The state argues that he crushed the
    OxyContin tablets, dissolved the particles in a syringe, and
    injected the patient with a portion of the dissolved drug. He
    then left with a syringe filled with the drug and some of the
    remaining tablets for his own use. Hays denies that he
    injected patients with the dissolved OxyContin, stating that
    he thought “crushing something . . . would be dangerous.”
    He claims that he occasionally broke pills in half or pre-
    scribed more of the drug than the patient needed so that he
    could take some of the pills for himself. He also injected
    some patients with a placebo (i.e., lidocaine or saline) so
    that he could inject the entire dosage of OxyContin into
    himself.
    Under Count I of the indictment, Hays was charged with
    tampering with a consumer product:
    Whoever, with reckless disregard for the risk that
    another person will be placed in danger of death or
    bodily injury and under circumstances manifesting
    extreme indifference to such risk, tampers with any
    consumer product that affects interstate or foreign
    commerce . . . [shall] be fined under this title or impris-
    oned not more than ten years, or both.
    
    18 U.S.C. § 1365
    (a), (a)(4). Count II alleged that Hays had
    “acquire[d] or obtain[ed] possession of a controlled sub-
    No. 04-2456                                                 3
    stance by misrepresentation, fraud, forgery, deception, or
    subterfuge.” 
    21 U.S.C. § 843
    (a)(3). Hays pled guilty to these
    charges but now seeks relief from his fifty-one
    month sentence under 
    28 U.S.C. § 2255
    .
    II. Analysis
    Relief under § 2255 “is reserved for extraordinary situa-
    tions.” Prewitt v. United States, 
    83 F.3d 812
    , 816 (7th Cir.
    1996) (citing Brecht v. Abrahamson, 
    507 U.S. 619
    , 633-34
    (1993)). The court may vacate or correct Hays’s sentence
    if he can “show that the district court sentenced him in
    violation of the Constitution or laws of the United States or
    that the sentence was in excess of the maximum authorized
    by law or is otherwise subject to collateral attack.” Prewitt,
    
    83 F.3d at
    816 (citing Theodorou v. United States, 
    887 F.2d 1336
    , 1338 n.2 (7th Cir. 1989)). We review the district
    court’s denial of the § 2255 motion de novo. McCleese v.
    United States, 
    75 F.3d 1174
    , 1177 (7th Cir. 1996).
    In order for a plea to be valid, it must be made volun-
    tarily, knowingly, and intelligently. See United States v.
    Gilliam, 
    255 F.3d 428
    , 432-33 (7th Cir. 2001) (citing
    McCarthy v. United States, 
    394 U.S. 459
    , 466 (1969)). Hays
    now argues that his plea was not intelligent or volun-
    tary and that his attorney provided ineffective assistance.
    A. Hays’s Conduct Affected Interstate Commerce
    A guilty plea is not made intelligently unless the defen-
    dant receives “real notice of the true nature of the charge
    against him . . . .” Smith v. O’Grady, 
    312 U.S. 329
    , 334
    (1941). Hays argues that because “neither [Hays], nor his
    counsel, nor the court correctly understood the essential
    elements of the crime with which he was charged,” the
    guilty plea is not valid. See Bousley v. United States, 
    523 U.S. 614
    , 618-19 (1998). The misunderstanding that
    4                                              No. 04-2456
    Hays alleges relates to the interstate commerce element
    of 
    18 U.S.C. § 1365
    (a).
    Hays relies on a Tenth Circuit decision as support for his
    argument that neither his counsel nor the court truly
    understood what was necessary for proving the inter-
    state commerce element of § 1365(a). In United States
    v. Levine, the court held that “the effect on interstate
    commerce must occur at or after the tainting.” 
    41 F.3d 607
    ,
    614 (10th Cir. 1994). The court noted that “the interstate
    commerce requirement is phrased in the present tense.” 
    Id.
    Therefore, it should be read to penalize one who tampers
    with a product that “affects interstate commerce.” This
    “suggests that the consumer product must have either a
    present effect or an effect in the future, and appears to
    exclude pre-tainting events.” 
    Id.
    At the change of plea hearing, the court established that
    OxyContin is manufactured in Minnesota and that the
    tampering occurred in Illinois. This was taken as ade-
    quate evidence of an effect on interstate commerce. Hays
    believes that the question should have been whether
    the drug had any effect on interstate commerce after
    Hays gained access to the OxyContin at the homes of
    his patients. He argues that his lawyers should have
    been aware of Levine and should have advised him not
    to plead guilty.
    Even if it is on point, a Tenth Circuit decision is not
    binding on courts in other circuits. See United States v.
    Glaser, 
    14 F.3d 1213
    , 1216 (7th Cir. 1994). We decline to
    follow Levine. We find the Eighth Circuit’s decision in
    United States v. Moyer to be persuasive. 
    182 F.3d 1018
     (8th
    Cir. 1999). In that case, the court reasoned that when a
    nurse stole morphine, she depleted the supply of morphine
    and caused more to be ordered. The morphine that was
    ordered traveled in interstate commerce. Under this
    reasoning, when a drug is manufactured outside the state,
    No. 04-2456                                               5
    the law of supply and demand can support a violation of
    § 1365(a). See Moyer, 
    182 F.3d at 1021
    .
    Also instructive was our decision in United States v.
    Cunningham, 
    103 F.3d 553
     (7th Cir. 1996). In that case,
    a nurse stole Demerol from a locked cabinet and replaced
    the drug with saline. This tampering arguably occurred
    after the drug had traveled in interstate commerce. The
    court did not discuss the interstate commerce element
    in upholding Cunningham’s conviction under § 1365, but
    the case can be read to state implicitly that the timing
    of the tampering is irrelevant.
    Hays does not deny that he tampered with OxyContin. By
    breaking pills, injecting saline, and stealing up to half of
    the drugs he prescribed, he denied patients who were dying
    of cancer their pain medication. Because of the prescrip-
    tions he wrote to facilitate his use of the drug, pharmacies
    in Illinois were required to order more OxyContin from
    Minnesota to replenish their supplies. Under the supply
    and demand theory, this is enough to support a violation of
    § 1365(a).
    The Supreme Court has indicated that the phrase
    “affecting commerce” usually “signals Congress’ intent to
    exercise its Commerce Clause powers to the full.” Allied-
    Bruce Terminix Co. v. Dobson, 
    513 U.S. 265
    , 273 (1995). We
    find that a violation of § 1365(a) occurs whether the
    tampering takes place before, during, or after the prod-
    uct moves in interstate commerce. Therefore, Hays did have
    real notice of the charges against him and his guilty plea
    was made intelligently.
    6                                               No. 04-2456
    B. Ineffective Assistance
    Hays claims that his counsel failed to adequately ad-
    vise him of the elements of the tampering charge and
    that he was provided with false information about his likely
    sentence. “To demonstrate prejudice arising from a guilty
    plea allegedly rendered involuntary by counsel’s deficient
    performance, a petitioner must establish that counsel’s
    performance was objectively unreasonable and that, but for
    counsel’s erroneous advice, he would not have pleaded
    guilty.” Bridgeman v. United States, 
    229 F.3d 589
    , 592 (7th
    Cir. 2000) (citation omitted). This test is “highly deferen-
    tial” to counsel and presumes reasonable judgment and
    effective trial strategy. See United States v. Scanga, 
    225 F.3d 780
    , 783-84 (7th Cir. 2000).
    Hays argues that he is actually innocent of the tampering
    charge and that he would not have pled guilty to it if he had
    understood the elements. However, because we decline to
    accept the rationale of Levine, we find that Hays’s counsel
    was objectively reasonable in allowing Hays to plead guilty.
    Hays claims his attorney misrepresented what his
    sentence would be if he did not plead guilty. Specifically,
    Hays states that his counsel told him that he should
    plead guilty because the prosecutors were personally
    angry with him and that they win ninety-nine percent
    of their cases. He says that counsel informed him that if
    he did not plead guilty to Count I, the prosecutors would
    “de-stack” the charges against him and he might have
    to spend ten to twenty years in prison. Hays says he
    was told that if he did accept the plea agreement, he would
    probably receive a very short sentence or possibly just
    probation because the prosecutors would not oppose a one-
    third reduction of the sentence and he would be eligible
    for a drug program which would further reduce his sen-
    tence.
    Hays now claims that the advice given to him by coun-
    sel was unsound. He argues that ten to twenty years was
    No. 04-2456                                                    7
    not a good faith estimate of his potential sentence and
    that it was also unlikely that Hays would receive “little
    to no” prison time if he pled guilty. Counsel should have
    discovered that Hays was not actually eligible for the
    drug program because the tampering charge was classi-
    fied as a violent crime by the Bureau of Prisons. Al-
    though this confusion was unfortunate, it is not enough to
    prove ineffective assistance—especially when Hays’s con-
    versation with the district court is taken into consideration.
    The court discussed the plea and its consequences with
    Hays and told him, “[Y]ou’re looking at prison time in
    this case, not probation; and you understand that?” He
    responded affirmatively. Judge Herndon explained at
    length that the final sentencing decision would be made
    by the court, not by the prosecutor or the defense attorneys.
    He informed Hays that if he decided to impose a sentence
    at the high end of the guideline range—closer to sixty-three
    than fifty-one months—Hays would not be able to withdraw
    his guilty plea.
    Counsel’s advice to Hays was not objectively unreason-
    able. Had Hays gone to trial, his sentence could have
    been substantially higher. Because of his plea, the court
    granted a three-level downward departure for acceptance of
    responsibility under U.S.S.G. § 3E1.1(a), (b). Without
    this departure, Hays’s sentence would have been be-
    tween seventy and eighty-seven months.1 Although it is
    true that counsel and the court thought that Hays would be
    eligible for a drug program, Judge Herndon made it clear at
    the hearing that neither he nor the attorneys had any
    control over that decision. Hays has not provided sufficient
    evidence to overcome the presumption that his counsel was
    effective.
    1
    We note in passing that United States v. Booker, 
    125 S. Ct. 738
    (2005), is not implicated in this case. See McReynolds v. United
    States, No. 04-2520, 
    2005 WL 237642
     (7th Cir. Feb. 2, 2005).
    8                                                No. 04-2456
    C. Hays’s Plea Was Voluntary
    Hays contends that his plea was not voluntary because
    the government threatened to add charges against him if he
    did not plead guilty. The court discussed this pressure with
    Hays and came to the conclusion that, although it was a
    difficult decision, Hays had weighed the benefits and
    decided voluntarily that pleading guilty was his best option.
    The court asked Hays whether anyone attempted to
    put undue pressure on him to plead guilty. The follow-
    ing conversation then occurred:
    Hays: I certainly feel that the Government may attack
    me more vociferously on charges that probably
    have not much merit, but certainly I think that
    that is an action that they’ve not said so much
    that they would take, but that is certainly
    looming out there. It is a threat. I feel that this
    is something I had to accept, yes.
    ....
    Court: Okay. So, I guess the bottom line is nobody
    comes in here gladly to plead guilty. . . . So,
    people come to some realization at some point
    that given the circumstances, they, to use
    your word, they feel like they have to do this
    because of a number of things. Obviously, there
    is some advantage to pleading guilty in the
    sense of acceptance of responsibility saves a
    person some punishment. Perhaps there is
    some other reasons [sic] for accepting a plea;
    might be to avoid additional charges, or what-
    ever the fact of life is.
    The real question I have to try to determine
    here is are you doing this of your own free will?
    Is this something you want to do, given the fact
    No. 04-2456                                                  9
    that you feel the constraints of the reality of the
    situation, but something that you really and
    truly want to do given everything, absent some
    undue arm twisting or improper sort of pres-
    sure?
    Hays: Yes, sir. In that instance, yes, understanding
    all the charges, understanding the position of
    the Government, the limitations available on
    this plea, the possible augmentation of charges
    or sentencing or departure downward. Taking
    all those things into consideration, no, sir,
    nobody has quote-unquote twisted my arm to
    make this plea. This is done of my own free
    will.
    (App. at 22-24.)
    A plea agreement is constitutionally valid if it “represents
    a voluntary and intelligent choice among the alternative
    courses of action open to the defendant.” United States v.
    Kelly, 
    337 F.3d 897
    , 904 (7th Cir. 2003) (citing North
    Carolina v. Alford, 
    400 U.S. 25
    , 31 (1970)). A trial judge has
    discretion to accept a guilty plea even when the defendant
    has declared his innocence as long as there is adequate
    evidence of guilt. See Higgason v. Clark, 
    984 F.2d 203
    , 208
    (7th Cir.), cert. denied, 
    508 U.S. 977
     (1993). We find that
    Hays’s colloquy with the court, and the evidence of guilt in
    the record, establishes that his plea agreement was volun-
    tary and intelligent.
    III. Conclusion
    Hays pled guilty to tampering with and fraudulently
    possessing OxyContin. He now argues that his counsel
    was ineffective and that his guilty plea was involuntary.
    These claims have no merit. He had a difficult decision to
    make, and he must now live with the consequences of that
    decision. The denial of his § 2255 motion is AFFIRMED.
    10                                        No. 04-2456
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—2-10-05