United States Court of Appeals For the First Circuit
No. 21-1574
UNITED STATES OF AMERICA,
Appellee,
v.
GLENN A. CHIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Barron, Chief Judge, Lipez and Howard, Circuit Judges.
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.
July 15, 2022 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.
- 2 - 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.
- 3 - 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-
- 4 - 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
- 5 - "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
- 6 - 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
- 7 - 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," Lucien, 347 F.3d at 56-
57.
In assessing whether the enhancement applied to Cadden,
the District Court found that Cadden "preside[d] over" a "high-
risk enterprise" at NECC and did so
- 8 - despite warnings, signals, . . . incomplete testing, falsification of drug lab cleaning reports, . . . the appearance of mold and other contaminants in the clean room, and his superior knowledge of the risk involved[.] I have to conclude that [Cadden's] conduct did and does fit within the definition of "recklessness."
The District Court then applied the enhancement to Cadden.
Chin was resentenced by the District Court the day after
Cadden was. The District Court declared in resentencing Chin, "I
do not want to retread ground that I covered yesterday. . . . . I
assume [the First Circuit's quotation of Lucien in Cadden] meant
they were adopting or at least embracing the Second Circuit's view
of how 'recklessness' would be defined in this case." The District
Court then held the "conscious or reckless risk" enhancement
applicable to Chin.
In addition, at Cadden's resentencing, the District
Court noted that, in light of the First Circuit's ruling in
Cadden's first appeal, "'victims' [are] defined . . . by the larger
picture of [an offender's] conduct as a whole," and that "any
person who entrusts medical personnel to inject a foreign substance
into their spine by definition fits what I would think, and
ordinary people would think, is a definition of being in a
vulnerable position." The District Court then applied the
"vulnerable victim" enhancement to Cadden.
- 9 - At Chin's resentencing, the District Court observed that
the "First Circuit['s] . . . expansive view of what constitutes a
'victim' under the Guidelines was pretty clear to me," and that
"vulnerability can . . . refer to one's . . . inability to protect
one's self under the circumstances." The District Court then held
the "vulnerable victim" enhancement applicable to Chin as well.
After applying both the "conscious or reckless risk" and
"vulnerable victim" enhancements to Chin, the District Court
determined that Chin's total offense level was 34. Given that the
District Court determined that Chin's Criminal History Category
was I, the District Court calculated his Guidelines Sentencing
Range to be a term of imprisonment of 151–188 months. The District
Court thereafter imposed a 126-month term of imprisonment and two
years of supervised release. Chin timely appeals. "[W]e review
the District Court's 'factfinding for clear error and afford de
novo consideration to its interpretation and application of the
sentencing guidelines.'" Chin I, 965 F.3d at 50 (quoting United
States v. Benítez-Beltrán, 892 F.3d 462, 469 (1st Cir. 2018)).
II.
We start with Chin's challenge to the District Court's
application of the two-level enhancement set forth in U.S.S.G.
§ 2B1.1(b)(16)(A). We are not persuaded by it.
- 10 - A.
Chin first argues that the District Court erred in
interpreting § 2B1.1(b)(16)(A). He contends that is so because
the District Court held the enhancement to apply so long as there
is proof that the offense, including the defendant's relevant
conduct, involved a risk of death or serious bodily injury of which
the defendant should have been aware and thus to apply even in the
absence of proof by a preponderance of the evidence that the
defendant in fact knew of that risk.
Chin contends in support of that argument that the
District Court based its "should have known" interpretation of the
enhancement solely on our invocation in the course of construing
that same provision of the Guidelines in Cadden of the Second
Circuit's decision in Lucien. He goes on to contend, however,
that "it is not at all clear from this Court's 'Cf.' citation to
Lucien that it was adopting that particular definition of 'reckless
risk.'"
Chin further argues that, given that we did not hold in
Cadden that Lucien controls, we must construe the enhancement
afresh. And, he contends, by virtue of the use of the word
"reckless" in § 2B1.1(b)(16)(A), the enhancement is properly
construed to require proof that a defendant was aware that his
relevant conduct in committing his offense created a risk of death
or serious bodily injury and not merely that he should have known
- 11 - of that risk. He then contends that, in consequence, the
enhancement cannot be applied to him, because the government did
not prove by a preponderance of the evidence that Chin was aware
of any such risk in engaging in the conduct relevant to his
offense.
We agree with Chin that the "Cf." citation to Lucien in
our Cadden decision, 965 F.3d at 34–35, does not resolve how this
enhancement must be construed. We did not have occasion in Cadden
to address the meaning of the word "reckless" in the enhancement.
Our focus there was solely on the District Court's failure to
address Cadden's "relevant conduct" in applying the enhancement
as § 1B1.1 cmt. n.1(I) of the Guidelines requires, given that the
District Court appeared to focus in assessing whether the
enhancement applied on the nature of the offenses of which Cadden
had been convicted. See Cadden, 965 F.3d at 34; U.S.S.G. § 1B1.1
cmt. n.1(I) (defining "offense"); id. § 1B1.3(a)(1)(A) (setting
forth "relevant conduct" for purposes of computing base offense
level, offense characteristics, and adjustments). But, even
though Cadden's invocation of Lucien is not controlling of the
question presented here, we nonetheless conclude that the
enhancement is best construed as Lucien construed it.
The Guideline refers to a "conscious or reckless
risk." U.S.S.G. § 2B1.1(b)(16)(A) (emphasis added). If we were
to read "reckless" in this Guideline itself to require a defendant
- 12 - to be aware of the risk of death or substantial bodily injury, as
Chin contends we must, the use of the words "conscious or" in that
same Guideline would be superfluous. See United States v. DeLuca,
17 F.3d 6, 10 (1st Cir. 1994) ("'[A]ll words and provisions of
statutes are intended to have meaning and are to be given effect,
and no construction should be adopted which would render statutory
words or phrases meaningless, redundant or superfluous.' We think
that this principle is fully applicable to the
sentencing guidelines . . . ." (internal citations omitted)
(quoting Lamore v. Ives, 977 F.2d 713, 716–17 (1st Cir. 1992))).
Nor can this redundancy be avoided, as Chin suggests, by
"requiring the government to prove, at the very least, what amounts
to willful blindness" to prove recklessness. "Willful blindness
serves as an alternate theory on which the government may prove
knowledge." United States v. Pérez-Meléndez, 599 F.3d 31, 41 (1st
Cir. 2010).
In construing the Guideline to require proof only that
the risk would have been obvious to a reasonable person in Chin's
position, we align ourselves not only with the Second Circuit
decision in Lucien, but with the Ninth and Tenth Circuits too.
See United States v. Maestas, 642 F.3d 1315, 1321 (10th Cir. 2011)
("[A] defendant’s conduct involves a conscious risk if the
defendant was subjectively aware that his or her conduct created
a risk of serious bodily injury, and a defendant’s conduct involves
- 13 - a reckless risk if the risk of bodily injury would have been
obvious to a reasonable person."); United States v. Johansson, 249
F.3d 848, 859 (9th Cir. 2001) ("We do not believe that a defendant
can escape the application of the serious risk of injury
enhancement by claiming that he was not aware that his conduct
created a serious risk, that is, a defendant does not have to
subjectively know that his conduct created the risk."). And while
Chin is right that two courts of appeals have ruled to the contrary
and interpreted § 2B1.1(b)(16)(A) to require actual, subjective
awareness of a risk, see United States v. Mohsin, 904 F.3d 580,
586 (7th Cir. 2018); United States v. McCord, Inc., 143 F.3d 1095,
1098 (8th Cir. 1998), neither of those courts explains how that
interpretation accords with the enhancement's use of the words
"conscious or" before "reckless." See Johansson, 249 F.3d at 858
("Our concern with the Eighth Circuit's interpretation of
'reckless' [in McCord] . . . is that there is no meaningful
distinction between an offense that involves the 'conscious' risk
of injury, and an offense that involves the 'reckless' risk of
injury, if under either prong the defendant must have been aware
of the risk in the first place."); accord Maestas, 642 F.3d at
1320-21.1
1Chin does also point to the Eleventh Circuit's decision in United States v. Mateos, 623 F.3d 1350 (11th Cir. 2010), which applied the enhancement on the ground that the sentencing court had "f[ound] that a trained nurse, such as [the defendant] . . .,
- 14 - Chin does point out that, although neither
§ 2B1.1(b)(16)(A) nor its application notes define the term
"reckless," a definition of that word does appear elsewhere in the
Guidelines. He then argues that we thus must apply that definition
of "reckless" here.
Chin has in mind the definition of "reckless" that
appears in the application notes to the Guideline that concerns
involuntary manslaughter. See U.S.S.G. § 2A1.4. That Guideline
sets different base offense levels for involuntary manslaughter
depending on whether "the offense involved criminally negligent
conduct; or . . . the offense involved reckless conduct; or . . .
the offense involved the reckless operation of a means of
transportation." Id. The application note to that Guideline, in
turn, defines "reckless" as follows:
"Reckless" means a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.
would be well aware" of the risks associated with her criminal activity, id. at 1371. But, as the government observes, this standard more closely resembles a should-have-known standard than an actual awareness standard. Moreover, insofar as the Eleventh Circuit meant to embrace an actual-awareness-of-risk requirement in Mateos, see id. ("the Guidelines provision focuses on the defendant's disregard of risk"), it, too, made no attempt to explain how such a requirement could be reconciled with the Guideline's text.
- 15 - Id. § 2A1.4 cmt. n.1. The application note also explains that
"'[c]riminally negligent' means conduct that involves a gross
deviation from the standard of care that a reasonable person would
exercise under the circumstances, but which is not reckless." Id.
But, the application note that sets forth this
definition of "reckless" in connection with the Guideline that
concerns involuntary manslaughter does not purport to apply
throughout the Guidelines. Nor does it even purport to apply to
the Guideline at issue here in particular, which applies to fraud
and certain related offenses. Thus, the application note does
not, by its terms, require us to apply the definition of "reckless"
that it sets forth here.
Moreover, it is problematic to apply that definition
here as a textual matter. The definition of "reckless" in the
involuntary manslaughter Guideline refers to a "risk." See
U.S.S.G. § 2A1.4 cmt. n.1. It is thus hard to see how that
definition could have been intended to apply to this Guideline,
because this Guideline itself uses the word "reckless" to modify
the word "risk." No such awkwardness arises under the involuntary
manslaughter Guideline; it uses the adjective "reckless" to
describe a defendant's conduct -- either "reckless conduct" or
"reckless operation of a means of transportation," U.S.S.G.
§ 2A1.4. See Maestas, 642 F.3d at 1321 (observing the distinction
- 16 - between the two Guidelines' respective uses of "reckless conduct"
and "reckless risk"); Johansson, 249 F.3d at 859 ("The Guideline
describes a 'reckless risk,' not a reckless disregard of a known
risk.").2
Chin separately argues that -- the definition of
"reckless" elsewhere in the Guidelines aside -- the term as it
appears in the enhancement at issue here is best construed to
require the defendant to be aware of the risk of death or serious
bodily injury. He relies for this contention in part on other
instances in which recklessness has been defined to require a
2 Chin draws our attention to a case in which this Court relied on the definition of "reckless" from the involuntary manslaughter Guideline when interpreting a third Guideline's use of that word. See United States v. Carrero-Hernández, 643 F.3d 344, 348–50 (1st Cir. 2011). There, this Court was tasked with interpreting a Guideline that provided for an increased offense level "if the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer," U.S.S.G. § 3C1.2, whose application note expressly imported the definition of "reckless" from the Guideline on involuntary manslaughter, id. cmt. n.2; see also Carrero-Hernández, 643 F.3d at 348. But, even setting aside the fact that in that case -- unlike this one -- the Guideline in question expressly incorporated the definition of "reckless" set out in the application note to § 2A1.4, Carrero-Hernández illustrates why the text of Chin's enhancement compels a different construction of the word "reckless." The provision at issue in Carrero-Hernández, like the involuntary manslaughter Guideline, used "reckless[]" to describe how an offender engaged in risky conduct. See U.S.S.G. § 3C1.2 ("If the defendant recklessly created a substantial risk . . ."); id. § 2A1.4 ("if the offense involved reckless conduct . . ."). By contrast, as we have explained, "reckless" in § 2B1.1(b)(16)(A) describes expressly a "risk," not the way an offender conducted himself with respect to that risk. See id. § 2B1.1(b)(16)(A).
- 17 - defendant's subjective awareness of a risk. See Voisine v. United
States, 579 U.S. 686, 694, 699 (2016) (describing reckless conduct
as "acts undertaken with awareness of their substantial risk of
causing injury" and "with conscious disregard of a substantial
risk of harm"); Farmer v. Brennan, 511 U.S. 825, 836–37 (1994)
("The criminal law . . . generally permits a finding of
recklessness only when a person disregards a risk of harm of which
he is aware.").
But, in those instances, the term defines the mens rea
element of a criminal offense, see Voisine, 579 U.S. at 691;
Farmer, 511 U.S. at 836–37, which must be proved beyond a
reasonable doubt.3 Here, however, the term appears in a sentencing
enhancement, which is subject only to the lower preponderance of
the evidence standard that also applies in the civil context. See
United States v. Hernández-Negrón, 21 F.4th 19, 25-26 (1st Cir.
2021). Thus, the examples of "reckless" being given the stricter
meaning on which Chin relies fail to show that this Guideline is
best construed to incorporate a meaning of "reckless" that is used
to define an element of a crime, rather than a meaning of
3Farmer was a civil Bivens action in which the Court held that "deliberate indifference," for the purposes of defining a violation of the Eighth Amendment, see Helling v. McKinney, 509 U.S. 25, 32 (1993), required actual knowledge and disregard of a risk, rather than merely an objective risk. 511 U.S. at 837, 839– 40. The Court explained in so holding, however, that it was "adopt[ing]" what it called "subjective recklessness as used in the criminal law." Id. at 839–40.
- 18 - "reckless" that is traditionally used in the civil context, which
is the one the Second Circuit attributes to it in Lucien, 347 F.3d
at 56-57. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 68
(2007) ("While 'the term recklessness is not self-defining,' the
common law has generally understood it in the sphere of civil
liability as conduct violating an objective standard: action
entailing 'an unjustifiably high risk of harm that is either known
or so obvious that it should be known.'" (quoting Farmer, 511 U.S.
at 836)); see also id. at 68 n.18 ("Unlike civil recklessness,
criminal recklessness also requires subjective knowledge on the
part of the offender.").
We do not mean to suggest that the word "reckless" in a
Guideline necessarily incorporates the traditional common-law
understanding of the term in the civil context. But, given the
use of the words "conscious or reckless" to modify risk in
§ 2B1.1(b)(16)(A), the text requires us to construe "reckless"
here to refer to that standard.
B.
Chin argues in the alternative that the record fails to
show by a preponderance of the evidence that his relevant conduct
satisfied the objective standard for recklessness, even if that
standard is the applicable one under this Guideline. Specifically,
he contends that "[w]hile [he] was aware that there were
deficiencies in testing and the condition of the compounding lab
- 19 - . . ., it would have required rank speculation to foresee that
those shortcomings would cause the vials of MPA to become
contaminated with fungus, leading to a scourge of serious illness
and death." We are not persuaded.
The District Court did not expressly set forth findings
about the nature of the risk of which Chin should have been aware
from his relevant conduct in committing his offense. However, we
may look to the record of the sentencing hearing to ascertain the
District Court's reasoning. Cf. United States v. Montero-Montero,
817 F.3d 35, 37 (1st Cir. 2016) ("To be sure, a sentencing court's
rationale sometimes may be inferred from the sentencing colloquy
and the parties' arguments (oral or written) in connection with
sentencing.").
Notably, before applying the § 2B1.1(b)(16)(A)
enhancement to Chin, the District Court explained that it "d[id]
not want to retread ground that [it] covered yesterday." It is
thus evident that the District Court was relying on the same
rationale for applying this enhancement to Chin that it had relied
on the day before in applying the enhancement to Cadden. And, at
Cadden's resentencing, it had explained that the enhancement
applied to Cadden because Cadden "preside[d] over" a "high-risk
enterprise" at NECC
despite warnings, signals, . . . incomplete testing, falsification of drug lab cleaning reports, . . . the appearance of mold and
- 20 - other contaminants in the clean room, and his superior knowledge of the risk involved.
Of course, the record in Chin's case must provide support
for the District Court's decision to apply the enhancement to him
based on this same rationale. But, reviewing the District Court’s
factfinding for clear error, Chin I, 965 F.3d at 50, we conclude
that the record here supportably shows that Chin knew in 2012 that
NECC's clean room was grossly contaminated after his staff's
failure to adhere to cleaning protocols, that he knew that NECC
was selling MPA that was not properly sterilized or tested for
sterility despite claiming that it was USP-797 compliant, and that
he instructed NECC technicians to mislabel untested drugs with the
lot numbers of older lots that NECC had tested. And, as the
government points out, the record also supportably shows that Chin
was required to follow USP-797 standards, the purpose of which "is
to describe conditions and practices to prevent harm, including
death, to patients that could result from . . . microbial
contamination." Thus, the District Court did not clearly err in
finding that Chin should have been aware of the risk of death or
serious bodily injury that his conduct in committing his offense
posed, given the evidence supportably showing that he breached
USP-797 standards that exist in part to "prevent
. . . death . . . to patients."
- 21 - III.
We next address Chin's contention that the District
Court erred in applying an enhancement to his sentence that
provides for a two-level increase "[i]f the defendant knew or
should have known that a victim of the offense was a vulnerable
victim." U.S.S.G. § 3A1.1(b)(1).4 The application note further
explains that the enhancement "applies to offenses involving an
unusually vulnerable victim." Id. § 3A1.1 cmt. n.2. To apply the
"vulnerable victim" enhancement, "the sentencing court must
determine that (1) 'the victim of the crime was vulnerable, that
is, . . . the victim had an "impaired capacity . . . to detect or
prevent crime;"' and (2) 'the defendant knew or should have known
of the victim's unusual vulnerability.'" United States v. Stella,
591 F.3d 23, 29 (1st Cir. 2009) (quoting United States v.
Donnelly, 370 F.3d 87, 92 (1st Cir. 2004)).
Chin does not dispute that the patients who were
administered NECC drugs are "victims" in the relevant sense. See
United States v. Bradley, 644 F.3d 1213, 1288 (11th Cir. 2011)
(concluding that "recipients of recycled blood-derivatives are
4U.S.S.G. § 3A1.1(b)(2) provides, "[i]f (A) subdivision (1) applies; and (B) the offense involved a large number of vulnerable victims, increase the offense level determined under subdivision (1) by 2 additional levels." The District Court applied this enhancement at Chin's resentencing. Chin does not argue that the District Court erred in applying the additional enhancement in § 3A1.1(b)(2) if the District Court properly applied the enhancement in § 3A1.1(b)(1).
- 22 - 'vulnerable victims'" where owner of pharmaceutical wholesaler's
fraudulent billing scheme caused AIDS and hemophilia patients to
be treated with recycled blood derivatives); United States v.
Milstein, 401 F.3d 53, 74 (2d Cir. 2005) (affirming application of
"vulnerable victims" enhancement where defendant "distribute[d]
counterfeit and misbranded drugs to doctors, pharmacists, and
pharmaceutical wholesalers, knowing that those customers would
distribute the drugs to women with fertility problems and
to Parkinson's disease patients"); see also United States v.
Sidhu, 130 F.3d 644, 655 (5th Cir. 1997) ("[A] physician's patients
can be victimized by a fraudulent billing scheme directed at
insurers or other health care providers."). But, he still argues
that neither prong of the enhancement is satisfied here. Reviewing
the District Court's factfinding for clear error and its
interpretation of the Guidelines de novo, Chin I, 965 F.3d at 50,
we do not agree.
A.
Chin contends that the victims here -- i.e., the patients
harmed by contaminated NECC drugs -- "were not 'unusually
vulnerable'" merely because they were members of "a generic class
of all medical patients." He further contends that such a finding
would be inconsistent with the intent and purpose of the Guideline,
which he says is meant to punish "defendants who exploit the
particular weaknesses of society's most vulnerable members." To
- 23 - the extent Chin contends that the District Court erred in its
interpretation and application of the Guideline, we disagree under
de novo review. To the extent he challenges the District Court's
factual finding that the victims at issue were in fact "unusually
vulnerable," we discern no clear error.
The District Court did not find, as Chin suggests, that
these victims were unusually vulnerable merely because they
belonged to "a generic class of all medical patients." Rather,
the District Court supportably found that they were unusually
vulnerable because their pain led them to "entrust medical
personnel to inject a foreign substance into their spine[s],"
recognizing that "vulnerability can equally refer to one's . . .
inability to protect one's self under the circumstances." Applying
the enhancement based on particularized class characteristics such
as these is consistent with our precedent. Although we have said
that the sentencing court should focus "on the victim's individual
characteristics" in applying this enhancement, "above and beyond
mere membership in a large class," see United States v. Feldman,
83 F.3d 9, 15 (1st Cir. 1996), we have also made clear that "this
is in no way a fixed rule," United States v. Gill, 99 F.3d 484,
486-87 (1st Cir. 1996). Indeed, "[i]n some cases the inference to
be drawn from the class characteristics may be so powerful that
there can be little doubt about unusual vulnerability of class
members within the meaning of section 3A1.1." Id. at 487 (citing
- 24 - United States v. Echevarria, 33 F.3d 175, 180-81 (2d Cir. 1994)
(upholding enhancement as applied to unlicensed doctor based on
group determination of vulnerability of medical patients),
superseded by regulation on other grounds as stated in United
States v. Hussey, 254 F.3d 428, 433 n.3 (2d Cir. 2001), and United
States v. Bachynsky, 949 F.2d 722, 735 (5th Cir. 1991) (same, as
applied to physician making false diagnoses)). Thus, reviewing de
novo, we conclude that the District Court did not err in
interpreting the Guideline.
Nor do we find any clear error in the District Court's
application of the Guideline to Chin. Indeed, we have upheld the
application of the enhancement in similar circumstances: in
Stella, we held that victims' "illnesses" can distinguish them
from members of the "general public" for purposes of the
vulnerable-victim enhancement, insofar as their need for
medication vitiates their ability to "help themselves" or "to
detect or prevent against the [relevant harm]." 591 F.3d at 30
(quoting the sentencing court's findings). Cf. Bradley, 644 F.3d
at 1289 (concluding that victims "were vulnerable due to their
medical condition -- AIDS and hemophilia"); Milstein, 401 F.3d at
74 (concluding that "women with fertility problems and . . .
Parkinson's disease patients" constituted vulnerable victims).
Here, the patients receiving MPA injections into their spine were
in a similarly "unusually vulnerable" position, see U.S.S.G.
- 25 - § 3A1.1 cmt. n.2, by virtue of their physical condition and the
circumstances of the procedure. Thus, we discern no error in the
District Court's application of the enhancement.
Chin also argues that the record fails to show that Chin
knew or should have known of the victims' unusual vulnerability.
In support of this contention, Chin appears to argue that the "knew
or should have known" requirement in § 3A1.1(b) per se precludes
the enhancement's application to him because he was merely a
supplier of medical products to health care facilities and thus
stood at a remove from the patients who were harmed by the
contaminated drugs that NECC compounded. But, insofar as Chin in
pressing this contention is making a legal argument about the
proper construction of the Guideline, such that our review is de
novo, see Chin I, 965 F.3d at 50, we must reject the contention.
Nothing in the text of the provision supports the per se
exclusion of medical suppliers. Thus, nothing in the text bars
the application of the enhancement to a medical supplier who knew
or should have known that he was distributing unsafe drugs that
would be used by vulnerable patients. See Bradley, 644 F.3d at
1289; Milstein, 401 F.3d at 74; see also United States v. Moran,
778 F.3d 942, 952–53, 978–79 (11th Cir. 2015) (applying "vulnerable
victim" enhancement to defendant CEO of medical facility who was
not directly involved in patient care). Rather, the text merely
- 26 - provides that the enhancement applies to an offender who "knew or
should have known that a victim of the offense was a vulnerable
victim." U.S.S.G. § 3A1.1(b).
Chin next argues that the enhancement may not be applied
to him by referencing the application note to it. The application
note explains that "[t]he adjustment would apply, for example, in
a fraud case in which the defendant marketed an ineffective cancer
cure." U.S.S.G. § 3A1.1 cmt. n.2. Chin contends that, in addition
to the fact that he was not himself "a health care provider," he
also is not analogous to a fraudster who marketed an ineffective
cancer cure. And that is so, Chin contends, because NECC had
previously sold lots of MPA without incident, and the record fails
to show by a preponderance of the evidence that he "kn[e]w that
any of the drugs he compounded were contaminated." He thus appears
to be contending that, absent a showing by a preponderance of the
evidence of his intent to defraud the victims, there can be no
finding that Chin knew or should have known that the victims were
vulnerable.
But, even if we understand this argument to be a
contention about the proper way to construe the Guideline, such
that our review is de novo rather than for clear error, Chin I,
965 F.3d at 50, we reject it. The text of the Guideline provides
no basis for concluding that the "knew or should have known"
standard may be satisfied only by a finding that the defendant
- 27 - intended to defraud his victims. Nor does the application note,
in giving an example of how the Guideline could be satisfied,
purport to suggest that there is a requirement to prove an intent
to defraud. Instead, the Guideline merely requires that it be
shown by a preponderance of the evidence that, in engaging in the
conduct relevant to his offense, Chin knew or should have known
that vulnerable patients would be using the unsafe drugs he
produced at NECC.
Finally, Chin appears to be arguing that, even if the
Guideline may be applied to a medical supplier who was not
defrauding patients, the District Court clearly erred in finding
that he "knew or should have known" that the victims were
vulnerable. Here, his assertion is that there is an absence of
record evidence of his individualized knowledge of both who the
end users of NECC drugs would be and that the drugs that NECC
shipped were contaminated. But, we cannot agree.
The District Court supportably found that "[e]vidence
introduced at trial, including internal NECC emails, brought home
the certainty that Chin and other of the coconspirators were fully
aware of the risks involved in the distribution of defective
drugs." Chin's resume advertised his "[k]nowledge of USP[-]797,"
and the first sentence of the introduction to USP-797 reads, "[t]he
objective of this chapter is to describe conditions and practices
to prevent harm, including death, to patients that could result
- 28 - from . . . microbial contamination . . . ." And, Chin himself
concedes in his brief to us that he "was aware that there were
deficiencies in testing and the condition of the compounding lab
and that all the USP-797 protocols were not being strictly adhered
to." Indeed, evidence was presented at trial that tended to show
that Chin was aware of the particularly grave risks associated
with injecting contaminated medication into a patient's spinal
fluid, as opposed to other routes of drug administration.5 Thus,
the District Court did not clearly err in concluding that Chin
knew or should have known that downstream recipients of MPA from
NECC were particularly vulnerable.
IV.
For the foregoing reasons, we affirm Chin's sentence.
An NECC compounding technician testified that Chin, when 5
training him in clean-room sanitation practices, "stressed that with the injectable drugs [there] was even more a need to be vigilant in terms of cleanliness because you're bypassing the immune system, basically injecting it right into the cerebral spinal fluid, whatever it is, and it's going to go straight up into their brain." Additionally, the second sentence of the introduction to USP-797 explains that "[c]ontaminated [compounded sterile preparations] are potentially most hazardous to patients when administered into body cavities, central nervous and vascular systems, eyes, and joints and when used as baths for live organs and tissues."
- 29 -