United States v. Chin

• Decision Date: 15 July 2022
• Docket Number: 21-1574
• Parties: UNITED STATES of America, Appellee, v. Glenn A. CHIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

41 F.4th 16

UNITED STATES of America, Appellee,

v.Glenn A. CHIN, Defendant, Appellant.

No. 21-1574

United States Court of Appeals, First Circuit.

July 15, 2022

James L. Sultan, with whom Rankin & Sultan was on brief, for appellant.

Christopher R. Looney, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

Before Barron, Chief Judge, Lipez and Howard, Circuit Judges.

BARRON, Chief Judge.

This appeal requires us to revisit the sentence that Glenn Chin, a former supervising pharmacist at the New England Compounding Center ("NECC"), received for his convictions in connection with the criminal investigation into the deadly nationwide outbreak of fungal meningitis

in 2012 that was traced to the company's shipments of contaminated drugs. When we last considered Chin's sentence, we vacated and remanded it. See

United States v. Chin, 965 F.3d 41, 60 (1st Cir. 2020) (" Chin I"). The United States District Court for the District of Massachusetts resentenced Chin while applying two sentencing enhancements under the United States Sentencing Guidelines ("Guidelines"). U.S. Sent'g Guidelines Manual §§ 2B1.1(b)(16)(A), 3A1.1(b)(1) [hereinafter U.S.S.G]. Chin contends that neither enhancement applies and thus that his sentence must be vacated once again. We affirm.

I.

The events at NECC have already been the subject of several reported decisions by this Court. We thus will rehearse only the facts relevant to Chin's current challenge to certain aspects of his resentencing. We refer the reader to Chin's first appeal, Chin I, 965 F.3d at 45-46, and to the appeal of Barry Cadden, Chin's boss at NECC, United States v. Cadden, 965 F.3d 1, 7-8 (1st Cir. 2020), for a more detailed discussion of the underlying facts.

NECC was a pharmacy based in Framingham, Massachusetts, that specialized in high-risk drug compounding, which refers to a process in which non-sterile ingredients are combined to create sterile drugs that are prepared at the request of hospitals and other healthcare providers. Chin worked as a licensed pharmacist at NECC from April 2004 to October 2012.

In January 2010, Chin was promoted to the role of supervising pharmacist at NECC, in which he oversaw all drug production in NECC's two "clean rooms." In the fall of 2012, a number of patients who had received epidural injections

of methylprednisolone acetate ("MPA") -- a steroid for pain relief -- contracted rare fungal infections that were ultimately traced back to contaminated drugs produced at NECC under Chin's supervision. A number of those patients died.

A federal criminal investigation into NECC's practices ensued, and in connection with it Chin was charged in December of 2014 with "racketeering in violation of 18 U.S.C. § 1962(c) ; racketeering conspiracy in violation of 18 U.S.C. § 1962(d) ; forty-three counts of federal mail fraud in violation of 18 U.S.C. § 1341 ; and thirty-two counts of violating the Federal Food, Drug, and Cosmetic Act (‘FDCA’), see 21 U.S.C. §§ 331(a), 333(a)." Chin I, 965 F.3d at 45. After a jury trial, Chin was found guilty on all counts. Id. at 46.

Evidence was introduced at trial that showed that Chin was familiar with Chapter 797 of the United States Pharmacopeia ("USP-797"), which sets forth standards governing sterile compounding that pharmacists licensed in Massachusetts must follow. Evidence introduced at trial also supportably showed that, despite NECC claiming to be USP-797 compliant, Chin knew that NECC was selling MPA

that had not been properly sterilized or tested for sterility in accordance with USP-797. And, evidence was introduced at trial that showed that NECC's clean room became grossly contaminated with mold and bacteria after Chin instructed clean room staff to ignore cleaning protocols, and that Chin knew of this contamination.

At Chin's sentencing in January 2018, the government, among other things, requested that the District Court apply the two Guidelines that set forth the enhancements that are the subject of Chin's present appeal. The first enhancement is U.S.S.G. § 2B1.1(b)(16)(A), which imposes a two-level increase in the base offense level of those convicted of certain crimes "[i]f the offense involved ... the conscious or reckless risk of death or serious bodily injury." The second enhancement is U.S.S.G. § 3A1.1(b), which imposes a two-level increase in the base offense level "[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim" and an additional two-level increase if that enhancement applies and "the offense involved a large number of vulnerable victims."

The District Court declined to apply either enhancement in sentencing Chin to a term of imprisonment of 96 months, to be followed by two years of supervised release. The District Court determined at Chin's first sentencing that the "conscious or reckless risk" enhancement did not apply because "the evidence did not establish a reckless and knowing disregard of a reasonable certainty of causing death or great bodily harm." The District Court determined that the "vulnerable victim" enhancement did not apply because "here the victims that were identified were the clinics and the hospitals who purchased the drugs," and "because we construe ‘victim’ differently for purposes of sentencing, the enhancements do not apply on a proximate cause theory to persons who were not recipients of NECC's representations" -- that is, the individuals who were ultimately harmed by injections of tainted pharmaceuticals from NECC.

The government appealed the sentence that the District Court had imposed. It did so, in part, on the ground that the District Court erred in not applying either enhancement.

On appeal, this Court rejected the District Court's basis for determining that the "conscious or reckless risk" enhancement did not apply. Chin I, 965 F.3d at 53. We first explained that the District Court failed to consider whether Chin's "relevant conduct," rather than the nature of his "offense" alone, carried with it the risk of death or serious bodily injury. Id. at 52–53. We further explained that the District Court erred because it

found that Chin did not act with a "reckless and knowing" state of mind in disregarding a "reasonable certainty of ... death or great bodily harm." The sentencing enhancement, however, describes the requisite mental state using disjunctive language: the enhancement applies so long as the defendant acted in spite of either a "conscious or reckless risk." U.S.S.G. § 2B1.1(b)(16)(A) (emphasis added). Thus, the District Court's finding does not foreclose the possibility that Chin's offense involved the mental state necessary for the enhancement's application. We therefore vacate and remand the sentence for the District Court to assess whether any of Chin's relevant conduct, as defined under U.S.S.G. § 1B1.3(a), "involved ... the conscious or reckless risk of death or serious bodily injury." Id. § 2B1.1(b)(16).

Id. at 53 (omissions in original).

Chin I was published on the same day as Cadden, and it referenced the Cadden opinion in its analysis of the "conscious or reckless risk" issue. See Chin I, 965 F.3d at 52. Cadden similarly vacated the District Court's refusal to apply this enhancement to Cadden and remanded for the court to consider the proper mens rea for the § 2B1.1(b)(16)(A) enhancement. We explained that

the District Court ... at no point directly addressed in sentencing whether a preponderance of the evidence ... established that Cadden's relevant conduct associated with the mail fraud involved a "conscious or reckless risk of death or serious bodily injury." U.S.S.G. § 2B1.1(b)(16) ; Cf. United States v. Lucien, 347 F.3d 45, 56-57 (2d Cir. 2003) (concluding that a conscious risk is one "known to the defendant" while a reckless risk is "the type of risk that is obvious to a reasonable person and for which disregard of said risk represents a gross deviation from what a reasonable person would do").

965 F.3d 1, 34–35.

In Chin I, this Court also rejected the District Court's basis for determining that the "vulnerable victim" enhancement did not apply. We explained in doing so that, " ‘[t]o come within the guidelines’ definition’ of ‘victim,’ ‘one need not be a victim of the charged offense so long as one is a victim of the defendant's other relevant conduct.’ " 965 F.3d at 54 (alteration in original) (quoting Cadden, 965 F.3d at 35 ). Moreover, in Chin I, with respect to whether Chin's particular conduct warranted the enhancement, we framed the question on remand with reference to commentary in the Guidelines. Specifically, we stated, "[w]e ... leave it to the District Court in the first instance to address, among other things, whether [Chin's] actions were analogous to those of a fraudster who ‘market[s] an ineffective cancer

cure,’ who the Guidelines indicate would merit the enhancement, U.S.S.G. § 3A1.1 cmt. n.2." Chin I, 965 F.3d at 54.

Following this Court's decisions in Cadden and Chin I, Cadden was resentenced on July 7, 2021. Chin was resentenced the next day by the same judge who had resentenced Cadden and who had previously sentenced both men.

At Cadden's resentencing, the District Court observed that, at the first sentencing, it had treated the applicable mens rea standard as "not recklessness in the tort law sense but in the appreciably stricter criminal law sense, requiring actual knowledge of an impending harm easily preventable." But, the District Court noted in resentencing Cadden, "[i]t's clear rather from the decision in Mr. Cadden's case that the First Circuit has adopted the Second Circuit's definition [in Lucien, 347 F.3d at 56-57 ], which is a quite different definition of recklessness." The District Court then quoted the definition of recklessness from Lucien: "the type of risk that is obvious to a reasonable person and for which disregard of said risk represents a gross deviation from what a reasonable person would do," Luc...