United States v. Coughlin

500 F.3d 813, 100 A.F.T.R.2d (RIA) 6145, 2007 U.S. App. LEXIS 20534, 2007 WL 2416368
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 28, 2007
Docket06-3294
StatusPublished
Cited by11 cases

This text of 500 F.3d 813 (United States v. Coughlin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Coughlin, 500 F.3d 813, 100 A.F.T.R.2d (RIA) 6145, 2007 U.S. App. LEXIS 20534, 2007 WL 2416368 (8th Cir. 2007).

Opinions

RILEY, Circuit Judge.

Thomas Coughlin (Coughlin), a successful and prominent corporate executive, pled guilty to six felony counts: five counts of aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; and one count of filing false tax returns, in violation of 26 U.S.C. § 7206(1). After properly calculating an advisory United States Sentencing Guidelines range of 27 to 33 months’ imprisonment, the district court departed and varied downward eight levels, sentencing Coughlin to no imprisonment, 5 years’ probation under 18 U.S.C. § 3561(c)(1) of which 27 months is home detention, a $50,000 fine, and $411,218 in restitution. The government appeals. We reverse and remand.

I. BACKGROUND

From January 1997 to October 2001, Coughlin was Wal-Mart Stores, Inc.’s (Wal-Mart) Chief Operating Officer and then Wal-Mart’s Executive Vice President and Vice Chairman of the Board of Directors. During this period, Coughlin defrauded Wal-Mart by (1) directing that Wal-Mart employees’ travel vouchers be falsely adjusted to request unwarranted reimbursements, which were then converted into cash and pocketed by Coughlin; (2) falsifying invoices so Wal-Mart paid Coughlin’s personal expenses; (3) altering Wal-Mart employees’ expense vouchers to include fictitious expenses, which were then converted into cash and pocketed by Coughlin; (4) using large quantities of Wal-Mart gift cards for personal use; and (5) looting audio equipment and cameras using Wal-Mart’s Merchandise Transfer Report.

The United States Probation Office prepared a presentence investigation report (PSR). The PSR set Coughlin’s base offense level at 6 and, due to the amount of the loss, increased Coughlin’s offense level by 9 levels. See U.S.S.G. § 2Fl.l(a), (b)(l)(J).1 The PSR increased Coughlin’s offense level by 2 levels because the offense involved more than minimal planning, see id. § 2Fl.l(b)(2)(A), by 2 levels because Coughlin was the organizer of the criminal activity, see id. § 3Bl.l(c), and by 2 levels because Coughlin abused a position of trust, see id. § 3B1.3. Cough-lin’s adjusted offense level was 21. The PSR reduced Coughlin’s offense level by 3 levels for acceptance of responsibility. See id. § 3E1.1. Coughlin’s total offense level was 18, and Coughlin had a criminal history category I, resulting in an advisory Guidelines sentencing range of 27 to 33 months’ imprisonment.

At sentencing, the government and Coughlin stipulated the PSR properly calculated Coughlin’s advisory Guidelines [816]*816sentencing range, and the court accepted the PSR’s calculation. The issues at sentencing were a departure based on Cough-lin’s health pursuant to Guideline § 5H1.4 and a variance based on the factors set forth at 18 U.S.C. § 3553(a).

Coughlin is in poor health. The record reflects Coughlin is six feet four inches tall and weighs about 330 pounds. Coughlin survived sudden cardiac death and has had an implantable cardioverter defibrillator since 2003. Coughlin presently suffers from cardiac arrhythmia, severe pulmonary hypertension, double vessel coronary atherosclerosis, type II diabetes, gout, eth-moid sinusitis, obesity, high blood pressure, severe allergies, and back and knee pain. Coughlin also suffers from severe obstructive sleep apnea, which necessitates the use of a continuous positive airway pressure machine at night to prevent a dangerous drop in Coughlin’s oxygen levels. Doctors have ordered Coughlin to control his weight and blood pressure since at least 1980, yet these warnings have generally gone unheeded.

Dr. Joel Carver (Dr. Carver), Coughlin’s treating physician, testified with a reasonable degree of medical certainty (1) sending Coughlin to prison would increase Coughlin’s stress level and significantly increase the risk of another heart attack; (2) Coughlin regularly took thirteen different medications, two of which Dr. Carver understood are not available through the Bureau of Prisons (BOP); and (3) Coughlin’s medications should not be changed. Dr. Carver has never visited a BOP facility and conceded he has no knowledge regarding how the BOP operates or treats the inmates medically, or even what medical capabilities exist within the BOP.2 Dr. Carver was asked on direct examination whether Coughlin could survive in the BOP, and Dr. Carver stated, “[it] honestly would be hard for me to speculate.” According to Dr. Carver, his medical opinion about Coughlin and the BOP is “[j]ust based on common sense.”

Dr. Tecora Ballom (Dr. Ballom), the Clinical Consultant for the South Central Region and Acting Clinical Director at the Federal Medical Center located at Cars-well, Texas, testified the BOP would review and assess Coughlin’s medical history and treat him appropriately. The BOP classifies inmates according to their medical needs. . Level one usually includes healthy patients with uncomplicated diseases who can perform the activities of daily living. Level two includes patients with chronic diseases who require more frequent monitoring. Level-three patients may not be able to perform all of the activities of daily living, require even more frequent monitoring, and are housed in a community with access to medical resources. Level-four patients have the most difficulty with daily living, require monitoring up to twenty-four hours a day, and are housed at medical referral centers.

Dr. Ballom testified Coughlin probably would be classified as a level-three patient (or possibly as a level-four patient), which would include access to medical treatment for patients with pacemakers and defibrillators and availability to a continuous positive airway pressure machine at night. Dr. Ballom discussed the procedure by which Coughlin could continue to take his current medications that are not typically available through the BOP. Dr. Ballom testified the BOP could help Coughlin cope with any increase in stress by using medical monitoring and possibly psychological or psychiatric consultations. Dr. Ballom noted Dr. Carver’s testimony concerning an increase in stress appeared to assume Coughlin would be housed at a level one or two prison from a camp situation to a [817]*817maximum-security penitentiary rather than at a dormitory-style facility. Dr. Bal-lom also testified Coughlin’s health conditions might improve because Coughlin would be in a controlled environment.

The district court agreed with Dr. Bal-lom and found “[Coughlin] is at a very high risk. And [the court is] equating that to an extraordinary physical impairment and, therefore, under [Guideline § ] 5H1.4, [the court finds] that there should be a downward departure ... by a level of eight.” This resulted in an adjusted total offense level of 10 and an advisory Guidelines sentencing range of 6 to 12 months’ imprisonment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. John Dailey
958 F.3d 742 (Eighth Circuit, 2020)
United States v. Frank Russell McCoy
847 F.3d 601 (Eighth Circuit, 2017)
United States v. Varner
678 F.3d 653 (Eighth Circuit, 2012)
United States v. Lozoya
623 F.3d 624 (Eighth Circuit, 2010)
United States v. Chase
560 F.3d 828 (Eighth Circuit, 2009)
United States v. Ira Chase
Eighth Circuit, 2009
United States v. Charles
531 F.3d 637 (Eighth Circuit, 2008)
United States v. Mousseau
517 F.3d 1044 (Eighth Circuit, 2008)
United States v. Coughlin
500 F.3d 813 (Eighth Circuit, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
500 F.3d 813, 100 A.F.T.R.2d (RIA) 6145, 2007 U.S. App. LEXIS 20534, 2007 WL 2416368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-coughlin-ca8-2007.