Joseph L. Fink III, BSPharm, JD
A defendant charged guilty of conspiracy to illegal distribute oxycodone received a more severe sentence due to his licensure as a pharmacist.
Issue of the Case
Should the fact that a defendant convicted of diverting oxycodone was a pharmacist be taken into account when the judge is determining the duration of incarceration to be served upon conviction?
Facts of the Case
A pharmacist in a mid-Atlantic state entered a guilty plea to criminal charges that he engaged in a conspiracy to distribute a controlled substance (oxycodone) in violation of the Federal Controlled Substances Act. As a component of his plea agreement, he waived his right to appeal any sentence or the way it was imposed as long as the sentence did not exceed the maximum provided for by statute. In return for these concessions on his part, the government agreed to recommend to the sentencing judge that there be a 2-level reduction in the offenses charged under federal law. As part of the deal, the defendant–pharmacist agreed to cooperate with the prosecutors.
In his written statement, the pharmacist indicated that he had been accosted in the parking lot of the pharmacy by 6 people, struck with the butt of a gun, and told that if he did not continue to dispense medication under fraudulent prescriptions, one of the individuals assaulting him “knew where he and his wife lived.” He also testified under oath about this event before a grand jury.
Unfortunately, this event never occurred and he was charged with perjury, a separate criminal charge. Because he had included it in his written submission to the court and repeated it before the grand jury, there were 2 separate crimes. His penalty was 24 months of incarceration on the perjury conviction, to run consecutively, not concurrently, with the 78-month sentence imposed for the initial crime of diverting the controlled substances.
The defendant, acting pro se (on his own behalf without an attorney), filed a motion with the trial court to have the sentence overturned because he was denied due process. He further alleged that he had received ineffective assistance of counsel during the sentencing discussions.
The Court’s Ruling
The court found no merit in the defendant’s claims and denied the motion.
The Court’s Reasoning
Federal courts are constrained in incarceration decisions by federal sentencing guidelines. At the trial court’s original sentencing hearing, the prosecuting attorney honored his commitment to recommend a minimum sentence for the offense, and the judge concurred. The judge also reduced the possible sentence to some extent because the defendant had acknowledged responsibility for his actions. That resulted in the sentence of incarceration for a period of 78 months.
It is highly noteworthy that when discussing the sentence, the judge specifically referred to the defendant’s licensure as a pharmacist, which put him in a position to appreciate the serious health risks associated with abuse of oxycodone. The judge also referred to the fact that there were no factors identified in the background of the defendant to explain his motivation for criminal activity, such as mental illness, poverty, or addiction.
Further, the judge alluded to the fact that his view of the defendant–pharmacist’s offense was aggravated by the fact that in addition to facilitating the movement of these legal medications into the illicit market, the pharmacist had abused his position of trust by revealing the personal information of legitimate patients to his co-conspirators. That information was then used by his colleagues in crime to file false insurance claims.
The court listed a variety of factors supporting the term of sentence—lying to the grand jury, abuse of personal information of patients, the duration of the conspiracy, the dangerous nature of the medication involved, lack of any extenuating circumstances, and abuse of his special knowledge and skills as a pharmacist. The judge also noted the desirability of deterring such activities by other pharmacists in the future. The conclusion on this point was that there had been no denial of due process in determining the sentence to be served.
Finally, the judge also reviewed the claims by the pharmacist that he had received ineffective assistance of counsel. He pointed to a number of instances where the advice provided to the defendant was highly appropriate under the circumstances. Accordingly, finding no basis in either argument advanced by the defendant–pharmacist acting as his own attorney in the matter, the sentences originally imposed by the trial court judge were upheld.
Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.