United States v. Freeman

• Decision Date: 25 January 2022
• Docket Number: No. 19-4104,19-4104
• Citation: 24 F.4th 320
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Precias K. FREEMAN, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

24 F.4th 320

UNITED STATES of America, Plaintiff – Appellee,

v.Precias K. FREEMAN, Defendant – Appellant.

No. 19-4104

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2021

Decided: January 25, 2022

ARGUED: Hannah Rogers Metcalfe, METCALFE & ATKINSON, LLC, Greenville, South Carolina, for Appellant. William Jacob Watkins, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF: Peter M. McCoy, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before GREGORY, Chief Judge, WILKINSON, NIEMEYER, MOTZ, KING, AGEE, WYNN, DIAZ, THACKER, HARRIS, QUATTLEBAUM, and RUSHING, Circuit Judges, and FLOYD, Senior Judge.

Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judges Motz, King, Wynn, Diaz, Thacker, Harris, and Senior Judge Floyd joined. Judge Quattlebaum wrote a dissenting opinion, in which Judges Wilkinson, Niemeyer, Agee, and Rushing joined.

ON REHEARING EN BANC

GREGORY, Chief Judge

Precias Freeman became addicted to opioids when she was prescribed them for a legitimate injury as a teenager. J.A. 129, 237. Shortly thereafter, and with the facilitation of medical professionals, Freeman began filling, and eventually selling, fraudulent prescriptions. J.A. 237. In 2017, Freeman pleaded guilty without the benefit of a plea agreement to an indictment charging her with possession with intent to distribute hydrocodone and oxycodone, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and she was sentenced to serve more than seventeen years in prison. J.A. 11, 75, 145–46. A new attorney was appointed to handle Freeman's appeal. Appellate counsel then submitted an Anders brief requesting this Court's assistance in identifying appealable issues, and we directed counsel to brief whether Freeman received effective assistance of counsel and whether her sentence is substantively reasonable. We hold that Freeman did not receive effective assistance of counsel and, therefore, vacate her sentence and remand for resentencing.

I.

Freeman was first prescribed opioids as a teenager after she fell in the shower while pregnant and broke her tailbone. J.A. 129, 237. Shortly thereafter, the doctor for whom she worked at the time gave her blank prescriptions and permitted her to write her own prescriptions for the pain medication Lortab. J.A. 237. Around 2001, while working at another medical practice, Freeman started printing duplicate prescriptions for patients prescribed opioids and keeping one for herself. J.A. 238. Once she filled these duplicate prescriptions, she would use half of the pills and sell the other half to an acquaintance who worked as a lab technician at a hospital. J.A. 238. She eventually began writing forged prescriptions. J.A. 238. Over time, Freeman's fraudulent prescriptions contained more and more pills at higher and higher concentrations. J.A. 238–40. While she continued to sell some pills, she also increased her personal use, and, by February 2015, she was taking sixty to eighty tablets per day. J.A. 240.

In 2008 and 2011, Freeman's conduct resulted in state convictions for obtaining fraudulent prescriptions and related crimes. J.A. 210–11. Her criminal record also shows additional, similar state charges that the state declined to prosecute. J.A. 212–13. All of Freeman's prior criminal conduct relates to using and selling opioids. J.A. 210–12. During her years of addiction and criminal activity, however, there is no indication that Freeman was ever violent or associated with anyone engaged in violence. See, e.g. , J.A. 210–15. Nor was she enriched by her drug sales; she could not afford her own car. J.A. 129.

Relevant to this appeal, Freeman was arrested on state charges on October 2, 2016, after a Walgreen's pharmacist recognized her and called the police. J.A. 206, 235. She was then transported to a hospital, where she tested positive for opiates. J.A. 235. That same day, state investigators interviewed Freeman at the hospital. J.A. 235. During this interview, she admitted that "on a good week she gets approximately 21 (twenty-one) forged prescriptions filled, and about 7 (seven) forged prescriptions on a bad week." J.A. 235. While Freeman was incarcerated on the pending state charges, a federal grand jury returned an indictment charging her with possession with intent to distribute hydrocodone and oxycodone between October 2014 and October 2016. J.A. 11; see also 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C).

On June 6, 2017, Freeman pleaded guilty to the charges. J.A. 4. While awaiting sentencing, Freeman spoke to a Drug Enforcement Administration (DEA) agent pursuant to a standard proffer agreement. J.A. 237. At this interview, Freeman stated that, during the relevant period, she was filling "one prescription per day, four to five days per week" and occasionally four to five prescriptions in a single day. J.A. 240. Each filled prescription contained 120 10mg hydrocodone pills. J.A. 240. In total, Freeman conservatively estimated that she sold 52,000 pills to her buyer between October 2014 and October 2016. J.A. 240.

Yet no agreement ultimately emerged from Freeman's proffer. In August 2017, while released on bond and awaiting sentencing, Freeman failed a drug test and admitted she had taken Lortab. J.A. 206–07. Based on the failed test, the court modified Freeman's bond on September 7, 2017, to require location monitoring with GPS. J.A. 207. During this same time period, public records confirm that Freeman and her family were evicted from their apartment. J.A. 244. They began living in hotels near her hometown of Shelby, North Carolina, about 40 miles away from their former home in Spartanburg, South Carolina. J.A. 117, 131–32. As Freeman explained to the district court at her sentencing, her family—including four children and a pregnant Freeman—left because they "didn't have anywhere to go." J.A. 131. Freeman remained in and around Shelby with her family until she was rearrested in March 2018. See J.A. 117, 207. Freeman also gave birth during this time. J.A. 116–17. The docket does not reflect that Freeman missed any court dates between September 2017 and March 2018. J.A. 4–5.

In July 2018, a few months after she was rearrested, Freeman appeared before the district court for a sentencing hearing. Based on Freeman's statement, given to state police while she was hospitalized and positive for opioids, that "on a good week she gets approximately 21 (twenty-one) forged prescriptions filled, and about 7 (seven) forged prescriptions on a bad week," J.A. 235, her probation officer estimated that Freeman had successfully filled one prescription per day every day for two years. J.A. 79–80 ("[S]he only had success typically with about one per day."). Accordingly, the initial presentence report (PSR)¹ held Freeman responsible for obtaining with intent to distribute 87,600 tablets of hydrocodone—the equivalent, for purposes of sentencing, of 5,869.2 kilograms of marijuana. J.A. 80. The initial PSR did not reduce this number to reflect Freeman's own use of the pills. See J.A. 79–82. The final calculated drug weight corresponded to a base offense level of thirty-two. J.A. 81–82.

At the hearing, Freeman raised questions about the drug weight assessed in the initial PSR. J.A. 77–79, 81. She also informed the district court that she had been unable to contact counsel until shortly before the hearing and that she disagreed with her counsel about how best to proceed with her case. J.A. 83–84. In response, the district court continued the hearing to allow Freeman's family to hire another attorney to represent her. J.A. 5, 85–86. The district court also noted that the government could, in the meantime, "revisit" the calculated drug weight based on the information in Freeman's proffer. J.A. 83–85. The court's intention that the PSR would be revised based on the proffer was even memorialized on the docket.² J.A. 5.

Freeman's probation officer did revise the PSR, but not based on Freeman's proffer. In the new report, the probation officer "conservative[ly]" estimated that Freeman successfully filled two prescriptions, consisting of 120 10mg pills, 365 days per year for two years—again without accounting for Freeman's personal use of the pills. J.A. 209. That quantity of drugs, 175,200 pills, is the equivalent, for purposes of sentencing, of 11,738.4 kilograms of marijuana. J.A. 209. Accordingly, the probation officer assigned Freeman a base offense level of thirty-four. J.A. 209. The estimated number of pills was, therefore, more than double the 52,000 pills that Freeman estimated she had sold in a statement given as part of her proffer. See J.A. 240. Further, in discovery, the government only provided evidence of fewer than sixty fraudulent prescriptions filled by Freeman during the relevant period, including evidence that she filled five prescriptions on December 1, 2014, and thirteen prescriptions on December 30, 2014. J.A. 207–08, 252–59.

The probation officer further recommended that Freeman receive a two-level increase in her offense level for obstruction of justice based on her move to North Carolina and, as a result, recommended that Freeman also not receive a potential three-level decrease in her offense level for acceptance of responsibility based on her admission of criminal conduct and timely guilty plea. J.A. 210. Freeman's recalculated overall offense level was thirty-six. J.A. 216.

Prior to Freeman's rescheduled sentencing hearing, Freeman's new attorney filed several objections to the revised PSR related to Freeman's failed drug test; the government's lack of evidence for its calculated drug weight; and the facts relating to the obstruction of justice enhancement. J.A. 242–61. But on the day of the hearing, he waived these objections, apparently to Freeman's surprise. See J.A. 108–09. Freeman's counsel told the district court that he was waiving the objections because they "might be considered as...