United States v. Vigil

• Decision Date: 12 February 2014
• Docket Number: No. CR 10–2310 JB.,CR 10–2310 JB.
• Citation: 998 F.Supp.2d 1121
• Parties: UNITED STATES of America, Plaintiff, v. Gloria VIGIL, Defendant.
• Court: U.S. District Court — District of New Mexico

998 F.Supp.2d 1121

UNITED STATES of America, Plaintiff,

v.Gloria VIGIL, Defendant.

No. CR 10–2310 JB.

United States District Court,

D. New Mexico.

Feb. 12, 2014.

Kenneth J. Gonzales, United States Attorney, John C. Anderson, Assistant United States Attorney, Albuquerque, NM, for the Plaintiff.

Marc M. Lowry, Rothstein, Donatelli, Hughes, Dahlstrom & Schoenburg, LLP, Albuquerque, NM, for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant Vigil's Objections to the Presentence Report & Sentencing Memorandum, filed March 16, 2012 (Doc. 122) (“Objections”). The Court held a sentencing hearing on April 26, 2013. The primary issue is whether the Court should sustain Defendant Gloria Vigil's objection to the United States Probation Office's application of both a 2–level upward adjustment under U.S.S.G. § 3B1.1 for Vigil's aggravating role in the offense, and a 2–level upward adjustment under U.S.S.G. § 3B1.3 for abuse of position of trust or use of a special skill. Although the United States Court of Appeals for the Tenth Circuit requires that the question whether a person abused a position of trust be evaluated from the victim's perspective, the Court concludes that the Tenth Circuit would construe “victim” broadly enough to encompass the community as the victim of Vigil's offense. The Court further concludes that Vigil's position as a nurse practitioner with licensed prescription writing authority was a position of trust, which she abused in a manner that significantly facilitated the offense's commission, because the position of trust was necessary to her commission of the offense of writing illegitimate oxycodone prescriptions. Because U.S.S.G. § 3B1.3's language makes clear that a sentencing court may employ a § 3B1.3 adjustment in addition to a two-level aggravating role adjustment under § 3B1.1 when the § 3B1.3 adjustment is based on abuse of a position of trust, the Court concludes that the PSR's application of both enhancements is not contrary to the United States Sentencing Guidelines.

FACTUAL BACKGROUND

Vigil was a nurse practitioner, and was the owner and operator of Clinica De La Gloria. See Presentence Investigation Report ¶ 12, at 5, disclosed July 7, 2011 (“PSR”). Vigil, pursuant to her nursing license and New Mexico Board of Pharmacy controlled substances license, had prescriptive authority in the State of New Mexico to handle and prescribe schedule II–V controlled substances. ¹See PSR ¶ 12, at 5. Vigil also was able “to apply for a [Drug Enforcement Agency (“DEA”) ] registration, which would then allow her to administer, dispense, procure, or prescribe controlled substances.” PSR ¶ 12, at 5. Vigil admits that, on occasion, she wrote prescriptions for oxycodone and provided them to individuals knowing that the prescriptions had no legitimate purpose. See PSR ¶ 44, at 13. Angelica Ortega, Ashley Grey, Paul Gutierrez, and Armando Montano helped Vigil illicitly prescribe or distribute oxycodone. See PSR ¶ 13–25, at 5–7.

PROCEDURAL BACKGROUND

The United States Probation Office (“USPO”) disclosed the PSR on July 7, 2011. In the PSR, the USPO calculates Vigil's total offense level to be 31. See PSR ¶ 54, at 15. The USPO calculates a base offense level of 30 based on the drug equivalency tables contained in U.S.S.G. § 2D1.1 and on the parties' agreement that “the equivalent of at least 700 kilograms but less than 1,000 kilograms of marijuana is attributable to the defendant.” ² PSR ¶ 46, at 14. The PSR states that the “offense has no identifiable victim.” PSR ¶ 114, at 28. The PSR includes a 2–level upward adjustment under U.S.S.G. § 3B1.1(c) based on Vigil's status as an “organizer, leader, manager, or supervisor” in the criminal activity for which she was convicted. PSR ¶ 47, at 14. The PSR includes a 2–level upward adjustment under U.S.S.G. § 3B1.3 based on Vigil's “abuse of position of trust or use of special skill” in the offense. PSR ¶ 50, at 14–15. The PSR includes a 3–level reduction under U.S.S.G. § 3E1.1 based on Vigil's acceptance of responsibility. See PSR ¶ 53, at 15. The PSR lists her criminal history category as I, based on 0 criminal history points. See PSR ¶ 57, at 16. The PSR calculates that an offense level of 31 and a criminal history category of I results in a guideline imprisonment range of 108 to 135 months. See PSR ¶ 102, at 25.

On March 16, 2012, Vigil filed her objections, objecting to portions of the PSR and supplying to the Court a memorandum to support her contention that the Court should sentence her to eighteen months of home or community confinement. See Objections at 1. Vigil first objects to the PSR's paragraph 7, because it states that Ortega is awaiting sentencing and, according to Vigil, Ortega was sentenced June 30, 2011. See Objections at 1–2. Vigil's second objection is to the PSR's assertion that Montano is a co-Defendant. See Objections at 2. Although she concedes that the PSR's observation that Montano was named in Count 3 of the Indictment is factually correct, Vigil asserts that “it is pragmatically wrong, and should be struck from the report,” because “Montano was never arraigned, was never assigned an attorney, and the case against him was never prosecuted.” Objections at 2. Third, Vigil objects to paragraphs 24 and 25, because, in her view, they incorrectly state the nature of her relationship with Montano. See Objections at 2. The PSR repeats Montano's account of conversations between Montano and Vigil in which they coordinated facets of drug exchanges; Vigil argues that the evidence, including the DEA's observations of Vigil's clinic and Montano's telephone records, contradicts Montano's account, and instead suggests that Montano dealt directly with Ortega and Gray. See Objections at 2 (citing Phone Examination Report at 5, dated August 9, 2011; Report of Investigation at 1, dated August 2, 2010). Fourth, Vigil objects to paragraph 40, because it indicates that Ortega and Gray used money that was collected during drug exchanges solely to support their own drug abuse, when the evidence shows that they used the money to pay personal bills as well. See Objections at 3 (Report of Investigation at 1, executed August 2, 2010).

In her fifth and most substantial objection, Vigil objects to paragraphs 49–50, arguing that the PSR cannot simultaneously apply to Vigil the sentencing enhancement for organizing, leading, managing, or supervising criminal activity, and the sentencing enhancement for abusing a position of trust. See Objections at 4. In support of this view, Vigil argues that her conduct cannot be characterized as an abuse of the public trust, but that it instead falls under the use of a “special skill.” Objections at 4–5. Vigil contests the PSR's conclusion that her ability to create fake patient charts “enabled her to escape detection,” arguing that her capacity to do so did not deceive the investigators. Objections at 5. Further, Vigil argues that, because the Court must assess an abuse of trust from the victim's point of view, and, because this crime has no victim, this crime cannot be an abuse of trust. See Objections at 4–5. Finally, Vigil asserts that, because her conduct is properly viewed as the use of a special skill and not a breach of the public trust, the Court may apply either the enhancement for abuse of the public trust or for organizing criminal activity, but it must not apply both enhancements. See Objections at 6. To support that proposition, Vigil quotes language from U.S.S.G. § 3B1.3: “If this adjustment is based solely on the use of a special skill, it may not be employed in addition to an adjustment under § 3B1.1 (Aggravating Role).” Objections at 6.

In her sixth argument, Vigil objects to the PSR's decision not to recommend a downward departure for physical condition. See Objections at 7. The PSR acknowledges her history of various health problems, including high blood pressure, diabetes, nerve pain, and a number of significant surgeries, but declines to recommend a downward departure. See PSR ¶ 121, at 29–30. Vigil argues that the PSR errs, because it fails to consider that the lingering effects of Vigil's childhood polio and her extended separation from her family for those effects' treatment resulted in depression and post-traumatic stress disorder. See Objections at 7–8. Vigil cites several documents as evidence of her troubled physical and psychological history and condition: (i) the Evaluation of Gloria E. Vigil by Elliot J. Rapoport, Ph. D., dated August 11, 2011; (ii) Records Relating to Gloria E. Vigil's Total Knee Replacement, dated July 25, 2005; (iii) Additional Records Relating to Gloria E. Vigil's Total Knee Replacement, dated August 1, 2005; (iv) Miscellaneous Medical Records, various dates; Records Relating to Gloria E. Vigil's Hip Operation, various dates; and (v)Additional Miscellaneous Medical Records, various dates. See Objections at 7. Vigil points to a number of serious problems that her childhood polio caused and argues that her physical and mental health problems warrant a downward departure. See Objections at 8–9.

In her seventh and final objection, Vigil contests the PSR's characterization of her mental health claims. See Objections at 9–10. The PSR said that Vigil could not document the duration and nature of her alleged treatment for depression; Vigil asserts that she now has documentation for at least some of that time, and further contents that she has since undergone a psychological evaluation, which concludes that she suffers from a major depressive disorder and post-traumatic stress disorder. See Objections at 9–10 (citing Medical Records Related to Gloria E. Vigil's Depression, various dates). She states that, “[b]ecause Vigil's physical and emotional conditions ... coexist and reinforce each other, and have caused a host of secondary complications, they should be considered together” to justify a downward...