U.S. v. Limberopoulos

• Decision Date: 03 January 1994
• Docket Number: 92-1955,92-2075 and 92-2076,Nos. 92-1954,s. 92-1954
• Citation: 26 F.3d 245
• Parties: UNITED STATES, Appellee, v. Nicholas LIMBEROPOULOS, Defendant, Appellant. UNITED STATES, Appellee, v. William LIMBEROPOULOS, Defendant, Appellant. UNITED STATES, Appellant, v. Nicholas LIMBEROPOULOS, Defendant, Appellee. UNITED STATES, Appellant, v. William LIMBEROPOULOS, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 245

26 F.3d 245

UNITED STATES, Appellee, v. Nicholas LIMBEROPOULOS, Defendant, Appellant.

UNITED STATES, Appellee, v. William LIMBEROPOULOS, Defendant, Appellant.

UNITED STATES, Appellant, v. Nicholas LIMBEROPOULOS, Defendant, Appellee.

UNITED STATES, Appellant, v. William LIMBEROPOULOS, Defendant, Appellee.

Nos. 92-1954, 92-1955, 92-2075 and 92-2076.

United States Court of Appeals, First Circuit.

Heard Jan. 3, 1994.

Decided June 14, 1994.

Steven J. Rappaport with whom Rappaport, Freeman & Pinta, Boston, MA, was on briefs for Nicholas Limberopoulos.

Barry P. Wilson with whom Craig A. Cellitti, Boston, MA, was on briefs for William Limberopoulos.

Michael Kendall, Asst. U.S. Atty., and Frank A. Libby, Jr., Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on briefs for U.S.

Before BREYER, ^* Chief Judge, SELYA and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

A jury convicted Nicholas and William Limberopoulos, both pharmacists, of conspiring to dispense, without proper prescriptions, approximately 18,000 pills, about 12,000 of which were Percodan or Percocet and about 4,000 of which were Valium. See 21 U.S.C. Sec. 841(a)(1) (distributing or dispensing addictive drugs); 21 U.S.C. Sec. 843(a)(2) (false DEA numbers); 21 U.S.C. Sec. 843(a)(4)(A) (false prescriptions); 21 U.S.C. Sec. 846 (conspiracy). At sentencing, the district court departed from the specified guideline sentencing ranges (GSRs)--235-293 months for Nicholas and 188-235 months for his son, William--and instead sentenced Nicholas to 36 months in prison and William to 30 months in prison. The court departed because, in its view, the defendants' conduct fell outside the "heartland" of the unlawful-drug-trafficking statute, 21 U.S.C. Sec. 841, but within the "heartland" of an unlawful-drug-prescribing statute, 21 U.S.C. Sec. 843. Since this latter statute, which is regulatory in nature, limits prison terms to a 48-month maximum, far less than the maximum under section 841, the court felt justified in departing downward.

Both sides appeal. We agree with the government that the district court's "heartland" determinations rest upon an erroneous conception of the unlawful-drug-prescribing statute. We do not accept the defendants' arguments on this, or on any other issue. Consequently, we affirm the defendants' convictions and remand the case for resentencing. We specify that, even though we find the court's given ground for departure legally inadequate, the court remains free to consider departure if other, legally adequate reasons exist.

I Background

A. The Trial

As is well known, the unlawful-drug-trafficking statute, 21 U.S.C. Sec. 841, forbids, among other things, the distribution, dispensing, or possession with intent to distribute of highly addictive "Schedule II" drugs. Other less well-known statutes apply to pharmacists, requiring that they maintain inventory records, dispense drugs only in pursuance of proper prescriptions, and keep copies of all such prescriptions, duly canceled to prevent unauthorized reuse. See 21 U.S.C. Secs. 827-830. What we have called the unlawful-drug-prescribing statute, 21 U.S.C. Sec. 843, makes it a crime, among other things, to violate certain of these recordkeeping requirements.

In this case, the government charged the defendants both with violating the unlawful-drug-prescribing statute, 21 U.S.C. Sec. 843, and with conspiring to violate the unlawful-drug-trafficking statute, 21 U.S.C. Sec. 841. It introduced evidence that, in essence, showed the following:

1. In 1988 and again in 1989, Drug Enforcement Administration (DEA) agents found that Limby's Pharmacy in Lowell, Massachusetts had not kept inventory records of its addictive drugs. The agents seized a group of Limby's canceled prescriptions (written between 1986 and 1988) and concluded that they were fraudulent.

2. Seven physicians testified that they had not signed their names to particular prescriptions, as the pharmacy's records indicated. Some of these witnesses pointed out that the prescriptions bore signatures or customer names that seemed not only false, but obviously so, as, for example, the customer name "Tin Can" on a prescription form falsely bearing the name of a Vietnamese physician. An eighth doctor had died before the time of the purported issuance of prescriptions bearing his name. Five of the "recipients" listed on the prescriptions, according to their own testimony or that of their relatives, had not requested, or received, the drugs purportedly prescribed.

3. A drug addict testified that he had often bought addictive drugs at Limby's, without prescription, between 1986 and 1987. He added that Limby's clerk, from whom he bought the drugs, told him not to worry about the fact that Nicholas Limberopoulos knew that the clerk was selling him addictive drugs.

On the basis of this, and related, evidence, the jury convicted Nicholas Limberopoulos, who owned Limby's Pharmacy and worked there occasionally, of writing 13 false prescriptions. ¹ See 21 U.S.C. Sec. 843(a)(4)(A). It convicted his son, William, who worked at Limby's regularly, of writing 39 other false prescriptions. See id. It convicted William, but acquitted Nicholas, of using false DEA numbers. See 21 U.S.C. Sec. 843(a)(2). And it convicted both defendants of conspiring to distribute addictive drugs to others. See 21 U.S.C. Secs. 841, 846.

B Sentencing

At sentencing, the district court first calculated the GSRs, properly using the June 15, 1988 version of the guidelines (to which we shall refer throughout). The court referred to the guideline applicable to a conspiracy to dispense Schedule II drugs unlawfully, see U.S.S.G. Sec. 2D1.4 & App. A.19, as that guideline instructs, found the weight of the various pills involved, and converted these weights into an equivalent weight in heroin. The court did so by aggregating the weight of all the pills listed on the false prescriptions underlying the substantive counts on which either Nicholas or William had been convicted (as well as a few other pills listed on a small group of related prescriptions). See U.S.S.G. Sec. 1B1.3(a)(2) & comment. (2). For example, the jury found Nicholas responsible for 13 false prescriptions, which, taken together, accounted for the dispensing of 275 grams of Percocet and 392.7 grams of Valium. The jury found William responsible for 92 violations concerning false prescriptions and DEA numbers, which, taken together, involved 2145 grams of Percocet, 1720 grams of Percodan, and 50.5 grams of Valium. The guidelines specified that these amounts (plus the weight of the few additional related pills) should be treated as the equivalent of between 3 and 9.9 kilograms of heroin, yielding a base offense level of 34. The court added two more levels for each defendant's "abuse of a position of trust," U.S.S.G. Sec. 3B1.3, and it added two further levels for Nicholas's "obstruction of justice." Id. Sec. 3C1.1. The result--level 38 for Nicholas and level 36 for William--produced GSRs for these two first-time offenders of 235-293 months for Nicholas and 188-235 months for William.

The lower court then departed downward from the GSRs because it believed that the defendants' conduct amounted, not to unlawful drug trafficking, but, rather, to the kind of "regulatory" offense forbidden by the unlawful-drug-prescribing statute, with its maximum penalty of 48 months in prison. The court wrote:

[I]t is the case here that the object of the conspiracy charged, the charged part of the conspiracy, is dispensing drugs pursuant to prescriptions not issued for [a] legitimate medical purpose. That is also the essence of the substantive offenses charged.

Under these circumstances, the mechanical application of [the] guidelines with respect to count 1 [drug trafficking] significantly, significantly, overstates the seriousness of the predicate and substantive offenses. This case is not a typical drug conspiracy case. Indeed, all of the substantive offenses are violations of a regulatory statute [21 U.S.C. Sec. 843], and Congress's intent with respect thereto was, in this case, overridden by the use of sections 846 [the conspiracy statute] and 841 [the drug trafficking statute].... Accordingly, I shall depart for the reasons I have just mentioned.

This said, the court imposed a 36-month prison term on Nicholas and a 30-month prison term on William. The government and the defendants now cross-appeal.

II The Government's Appeal

The government appeals the court's decision to depart downward. It acknowledges that the district court has broad power to depart from a properly calculated sentencing range in an unusual case--a case that lies outside the "heartland" of the base guideline that would otherwise apply. See United States v. Rivera, 994 F.2d 942, 947 (1st Cir.1993); United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); see also U.S.S.G. Ch. I, Pt. A, intro. comment. 4(b). But the sentencing court must give its reason(s) for departing, see 18 U.S.C. Sec. 3553(c)(2); and the government asks this court to review the legal adequacy of those reasons, as well as the reasonableness of the result. See Rivera, 994 F.2d at 950-52; Diaz-Villafane, 874 F.2d at 50; see also 18 U.S.C. Sec. 3742(e)(3). In particular, the government urges us to find that the district court's reason for departing reflects a misunderstanding of the basic aim that animates the unlawful-drug-prescribing statute.

The district court's reason for departing here is its professed belief that defendants' conduct fell outside the "heartland" of the strict unlawful-drug-trafficking statute, 21 U.S.C. Sec. 841, but within the "heartland" of the more lenient unlawful-drug-prescribing statute, 21 U.S.C. Sec. 843. That is to say, the court thought that the offenders' conduct, while technically falling within a specific statute and guideline, in reality more closely...