United States v. Algirdas Krisciunas

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 12, 2011
• Docket: 10-15114
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-15114 OCTOBER 12, 2011 JOHN LEY Non-Argument Calendar CLERK ________________________

D.C. Docket No. 0:10-cr-60007-WPD-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALGIRDAS KRISCIUNAS,

Defendant-Appellant.

________________________

No. 10-15214 Non-Argument Calendar ________________________

D.C. Docket No. 0:10-cr-60007-WPD-4

versus MARIA TERESA BULICH,

Appeals from the United States District Court for the Southern District of Florida ________________________

(October 12, 2011)

Before HULL, PRYOR and BLACK, Circuit Judges.

PER CURIAM:

Algirdas Krisciunas and Maria Teresa Bulich appeal following their

convictions and sentences for conspiracy to dispense a controlled substance,

oxycodone, without authorization by law, in violation of 21 U.S.C. § 846 (Count

1) and dispensing oxycodone without authorization by law, in violation of

21 U.S.C. § 841(a)(1) (Counts 3-7). Krisciunas appeals his 97-month total

sentence, contending the sentence was substantively unreasonable in light of his

age, health, and otherwise law-abiding history. Maria Teresa Bulich appeals her

convictions and 78-month total sentence, arguing (1) the evidence presented at

trial was insufficient to convict her on the conspiracy or substantive charges, and

2 (2) the district court erred by applying a managerial role enhancement at

sentencing, pursuant to U.S.S.G. § 3B1.1(c). After review, we affirm.

I.

Krisciunas challenges the substantive reasonableness of his total sentence.1

We determine whether the sentence imposed is substantively reasonable in light of

the 18 U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S. 38, 51 (2007).

The sentencing court shall impose a sentence “sufficient, but not greater than

necessary” to comply with the purposes of sentencing, namely, to reflect the

seriousness of the offense, promote respect for the law, provide just punishment

for the offense, deter criminal conduct, protect the public from further criminal

conduct by the defendant, and provide the defendant with needed educational

training, vocational training, medical care, or other correctional treatment in the

most effective manner. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence,

the court must also consider the nature and circumstances of the offense, the

history and characteristics of the defendant, the kinds of sentences available, the

applicable Guidelines range, the pertinent policy statements of the Sentencing

1 By failing to challenge the procedural reasonableness of his sentence, Krisciunas has abandoned this issue on appeal. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003)

3 Commission, the need to avoid unwarranted sentencing disparities, and the need to

provide restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).

Krisciunas has not met the burden of showing that his 97-month total

sentence was substantively unreasonable.2 It was within the applicable Guidelines

range, and we ordinarily expect such a sentence to be reasonable. See United

States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (“[W]hen the district court

imposes a sentence within the advisory Guidelines range, we ordinarily will expect

that choice to be a reasonable one.”). Although he asserts the district court failed

to properly consider his age, health, and previous law-abiding history, this

argument is contradicted by the fact the court specifically noted it considered his

age and health before sentencing, questioned the Government about the

sufficiency of a sentence for a man of his age, and accounted for his lack of

criminal history by ascribing him a criminal history category of I. Moreover, the

district court determined that pain clinics–in which unscrupulous doctors such as

Krisciunas prescribed drugs to addicts–were a serious problem in the community,

and it was appropriate to fashion a sentence that would act as a deterrent to others

2 We review the reasonableness of a sentence “under a deferential abuse-of-discretion standard.” Gall, 552 U.S. at 41. “[T]he party who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both [the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

4 who might otherwise commit a similar offense. Consequently, Krisciunas’s

sentence was substantively reasonable and we affirm his 97-month total sentence.

II.

A. Sufficiency of the evidence

Bulich challenges the sufficiency of the evidence with regard to her

convictions. “We review de novo the denial of a motion for acquittal and the

sufficiency of the evidence to sustain a conviction.” United States v. Tampas, 493

F.3d 1291, 1297 (11th Cir. 2007).3 We will uphold a jury’s verdict if a reasonable

jury, viewing the evidence and all reasonable inferences in the light most

favorable to the government, could find the defendant guilty as charged beyond a

reasonable doubt. Id. at 1297-98. “It is not our function to make credibility

choices or pass upon the weight of the evidence. Instead, we must sustain the

verdict where there is a reasonable basis for it.” United States v. Farley, 607 F.3d

1294, 1333 (11th Cir.), cert.denied, 131 S. Ct. 369 (2010) (quotations and citation

omitted).

The elements of a conspiracy offense under 21 U.S.C. § 846 are: “(1) an

agreement between the defendant and one or more persons, (2) the object of which

is to do either an unlawful act or a lawful act by unlawful means.” United States v.

3 Bulich moved for acquittal at the close of the government’s case, which the district court denied, and she presented no evidence in her own defense.

5 Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). “To sustain a conviction under an

aiding and abetting theory, the prosecution must show that the defendant

associated [her]self with a criminal venture, participated in it as something [s]he

wished to bring about, and sought by [her] actions to make it succeed.” United

States v. Pantoja-Soto, 739 F.2d 1520, 1525 (11th Cir. 1984) (quotations omitted).

Practitioners, such as doctors and pharmacists, are afforded a limited

exemption to the controlled substances statute. See United States v. Steele, 147

F.3d 1316, 1318 (11th Cir. 1998) (en banc). Practitioners can be prosecuted,

under § 841, however, for dispensing controlled substances “when their activities

fall outside the usual course of professional practice” and are not prescribed “for a

legitimate medical purpose.” United States v. Moore, 423 U.S. 122, 124 (1975)

(usual course of professional practice); see also United States v. Betancourt, 734

F.2d 750, 757 & n.7 (11th Cir. 1984) (legitimate medical purpose).

Bulich’s convictions for conspiracy, Count 1, and aiding and abetting the

unlawful dispensing of oxycodone, Counts 3 through 7, were supported by

sufficient evidence. Bulich worked in a supposed medical clinic teeming with

drug addicts and had employees using drugs on the premises. Witnesses testified

Bulich was specifically informed the clinic’s records were falsified and patients

were addicts. Witnesses testified Bulich began to order a specific brand of

6 oxycodone after being told it was addict-preferred. Based on the evidence, a

reasonable jury could infer an agreement to unlawfully dispense oxycodone from

the fact it occurred so openly. Moreover, the evidence entitled the jury to find that

Bulich shared a community of purpose with Krisciunas, in which she assisted his

criminal actions in the hopes that they would succeed, namely by dispensing the

prescription drugs he prescribed.

Accordingly, the Government established Bulich agreed to and assisted the

unlawful dispensing of oxycodone. Based on overwhelming evidence, Bulich was

not operating the clinic as a legitimate medical office, but instead was acting as a

dispensary for oxycodone to individuals who were not in medical need of it.

Therefore, the Government presented sufficient evidence at trial to convict on

Counts 1 and 3 through 7, and we affirm Bulich’s convictions.

B. Managerial role enhancement

Bulich challenges the district court’s application of a managerial role

enhancement at sentencing. “A defendant's role as an organizer or leader is a

factual finding that we review for clear error to determine if the enhancement

under § 3B1.1 was applied appropriately.” United States v. Ramirez, 426 F.3d

1344, 1355 (11th Cir. 2005). A two-level enhancement is appropriate where “the

defendant was an organizer, leader, manager, or supervisor in any criminal

7 activity.” U.S.S.G. § 3B1.1(c). “The assertion of control or influence over only

one individual is enough to support a § 3B1.1(c) enhancement.” United States v.

Perry, 340 F.3d 1216, 1217 (11th Cir. 2003) (quotations and alteration omitted).

Thus, where the defendant arranges drug transactions, negotiates sales, and hires

others to work for the conspiracy, a managerial-role enhancement is warranted.

United States v. Matthews, 168 F.3d 1234, 1249-50 (11th Cir.1999).

The district court did not clearly err by applying a two-level managerial role

enhancement at sentencing. At trial, evidence was presented that Bulich was the

owner and proprietor of the clinic, had the power to hire and fire employees,

dictated orders to employees including Krisciunas, had sole control over the

oxycodone, and ordered the oxycodone pills. Consequently, she asserted control

and influence over other individuals, arranged drug transactions, and otherwise led

the criminal activity afoot at the clinic. Accordingly, the district court did not err,

clearly or otherwise, by assessing Bulich a managerial role enhancement, and we

affirm.

III.

We conclude Krisciunas’s total sentence was substantively reasonable. We

further conclude Bulich’s convictions were supported by sufficient evidence, and

8 the district court did not err in applying a managerial role enhancement to Bulich

at sentencing.

AFFIRMED.