FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS May 2, 2013 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court __________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 12-1434 v. (D.Ct. No. 1:11-CR-00188-JLK-1) (D. Colo.) LESLIE RENEE HEE,
Defendant-Appellant. ______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Leslie Renee Hee pled guilty to one count of conspiracy to
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. distribute and possess with intent to distribute the controlled substances of
cocaine, oxycodone, fentanyl and methylenedioxymethamphetamine (commonly
known as Ecstasy), in violation of 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1) and
(b)(1)(C); and 21 U.S.C. § 846, and was sentenced to 180 months imprisonment.
On appeal, Ms. Hee contests both the procedural and substantive reasonableness
of her sentence. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291 and affirm Ms. Hee’s sentence.
I. Background
On May 4, 2011, a thirty-four-count indictment issued against Ms. Hee and
members of her drug trafficking organization. Ms. Hee pled guilty to one count
of conspiracy to distribute and possess with intent to distribute controlled
substances in exchange for dismissal of at least twenty-eight other drug-related
counts against her. In her plea agreement, Ms. Hee stipulated to the following
material facts and also agreed the court could consider relevant conduct and any
additional pertinent facts in computing her sentence.
In early 2008, agents with the Denver Police Vice and Drug Control
Bureau, together with agents of the Federal Bureau of Alcohol, Tobacco, Firearms
and Explosives, began an investigation of Ms. Hee’s husband, Michael Hee.
During their investigation, agents learned of the Hees’ association with the
-2- overdose death of Jeremiha Bennett, a thirty-one-year-old man found dead in their
residence on April 25, 2008. Medical personnel called to the home observed
several prescription pill bottles in the living room on a table near the body,
including OxyContin (a brand name for oxycodone) and Xanax (a brand name for
alprazolam), prescribed to Mr. Bennett by Dr. N. Hoffman. Agents later
discovered Ms. Hee referred Mr. Bennett to Dr. Hoffman for the purpose of
obtaining prescription drugs to further Ms. Hee’s drug trafficking organization
and that from January to April 2008, Mr. Bennett obtained multiple prescriptions
for OxyContin and alprazolam from Dr. Hoffman.
Days after Mr. Bennett’s death, agents followed Ms. Hee and another
female, Ali Wilfley, to a parking lot and observed them leave their vehicle and
enter a tanning and nail salon. Ms. Wilfley later exited the salon and entered the
vehicle where agents observed what appeared to be a narcotics transaction
between her and a male, hereafter referred to as S.B. After S.B. drove away in
another vehicle, authorities conducted a traffic stop during which they discovered
OxyContin in his possession. After his arrest, S.B. advised agents: (1) he called
Ms. Hee earlier that day to obtain OxyContin and she told him to meet Ms.
Wilfley in the parking lot; (2) he paid $100 and received twenty pills from her but
still owed $700 for them; (3) Ms. Hee usually gave him a couple of weeks to pay;
(4) he had known Ms. Hee since January 2008 and bought approximately ten
-3- OxyContin pills from her each week; (5) Ms. Hee recruited individuals into her
drug trafficking ring and directed them to make appointments with Dr. Hoffman
and other area doctors she determined were “easy marks” for the purpose of
obtaining prescription drugs; (6) once they obtained the prescriptions, Ms. Hee
paid them for filling the prescriptions and gave them some of the pills for their
use or for sale to users and lower-level drug traffickers; (7) he believed Ms. Hee
sold OxyContin to at least eight to ten people and also sold fentanyl and Percocet
(a prescription drug containing oxycodone); and (8) while Ms. Hee’s prescription
drug trafficking organization sold pharmaceuticals, as well as cocaine and
methamphetamine, she preferred selling and distributing OxyContin.
On May 6, 2008, S.B. introduced an undercover agent to Ms. Hee for the
purpose of purchasing Schedule II prescription drugs from her and other members
of her organization; on that day, the agent purchased 2.6799 grams of oxycodone
from her. From May to October 2008, and then again on November 10, 2010,
undercover agents purchased large quantities of various illegal and prescription
drugs from Ms. Hee directly or, occasionally, through members of her
organization at her direction. 1 Agents also obtained a ledger containing entries
relating to Ms. Hee’s organization’s sale of certain amounts of narcotics.
1 While the amounts and types of drugs are listed in the plea agreement, for judicial economy, we decline to list the dates of every transaction or the exact amounts and specific types of drugs for the purpose of disposing of this appeal.
-4- During an October 2008 transaction, an agent overheard Ms. Hee’s
conversation with another woman concerning the death of Katina Phillips, a
member of Ms. Hee’s drug trafficking organization. Authorities later confirmed
Ms. Phillips died on October 16, 2008, after drowning in a bathtub, and had
cocaine and Ecstasy, and possibly OxyContin and alprazolam, in her system.
During an interview with authorities, the individual who discovered Ms. Phillips’s
body, hereinafter referred to as B.D., admitted Ms. Phillips obtained, from a
pocket in his pants, certain drugs, including cocaine, Ecstasy, OxyContin,
fentanyl, and Xanax, and that Ms. Hee’s organization was the source of all the
prescription narcotics in his possession. Authorities also discovered, through
information provided by Ms. Phillips’s sister, that Ms. Phillips participated in Ms.
Hee’s drug trafficking organization, struggled with prescription drug addiction,
and met Ms. Hee at a drug addiction meeting.
On November 17, 2008, through records from the Colorado State Pharmacy
Board, agents verified Ms. Hee’s drug trafficking organization included fourteen
individuals, of which twelve maintained multiple prescriptions for various
narcotics, such as fentanyl and oxycodone, and that most of these prescriptions
came from Dr. Hoffman. In April 2009, agents interviewed one of Ms. Hee’s co-
conspirators, who gave intricate details regarding the operation of the drug
trafficking organization, including how Ms. Hee recruited and trained members to
-5- obtain and sell prescription drugs, kept them addicted to prescription drugs,
and/or threatened to cause them harm.
In pleading guilty, Ms. Hee stipulated, in part: (1) her base offense level
was 38 because the offense to which she pled guilty resulted in Ms. Phillips’s and
Mr. Bennett’s deaths; (2) she organized and led the conspiracy involving five or
more participants which resulted in those two deaths; and (3) she was not eligible
for a safety valve reduction due to those deaths. Following Ms. Hee’s guilty plea,
a probation officer prepared a presentence report, calculating her sentence under
the applicable 2011 United States Sentencing Guidelines (“Guidelines” or
“U.S.S.G.”). In explaining her offense conduct, the probation officer reiterated
the stipulated facts contained in Ms. Hee’s plea agreement, as previously
outlined, and attached to the presentence report voluminous supporting
documents. In calculating her sentence, the probation officer set Ms. Hee’s base
offense level at 38, pursuant to U.S.S.G. § 2D1.1(a)(2), based on her conviction
under 21 U.S.C. § 841(a)(1) and (b)(1)(C) and the relevant conduct related to that
offense which resulted in the deaths of Ms. Phillips and Mr. Bennett. The
probation officer then increased the base offense level four levels under
§ 3B1.1(a), because Ms. Hee was the organizer and leader of a drug trafficking
organization involving five or more participants, and reduced it three levels for
acceptance of responsibility, for a total offense level of 39. A total offense level
-6- of 39, together with Ms. Hee’s criminal history category of I, resulted in a
recommended Guidelines range of 262 to 327 months imprisonment. However,
because her Guidelines range exceeded the twenty-year maximum term of
imprisonment under 21 U.S.C. § 841(b)(1)(C), the probation officer applied
U.S.S.G. § 5G1.1(a) so that the recommended Guidelines range was the lower,
statutorily-authorized, maximum sentence of 240 months imprisonment.
In discussing the sentencing factors under 18 U.S.C. § 3553(a) and her
recommendation for a lengthy prison term, the probation officer noted the nature,
circumstances, and seriousness of the offense included the fact Ms. Hee obtained
and sold prescription drugs; recruited and coached young people in the
conspiracy; fostered their dependency and suppled narcotics to them in order to
worsen their addictions as a means to keep them working for her; and led the
conspiracy which resulted in at least two individuals’ deaths. The probation
officer also discussed Ms. Hee’s personal history and characteristics, including
her significant, longstanding history of abusing prescription pain medications; her
medical condition causing pain in both feet which exacerbated her prescription
narcotics addiction; the fact she battled depression and anxiety for several years;
and her employment record, showing she operated a vehicle subleasing company
and a salon during the period in which she ran the drug trafficking organization.
-7- As stipulated in the plea agreement, the government filed a motion for
downward departure pursuant to U.S.S.G. § 5K1.1, requesting the district court
depart downward from the statutory maximum sentence of 240 months and
impose a sentence in the range of 144 to 168 months. Other than additions or
clarifications not affecting the disposition of this appeal, Ms. Hee did not file any
objections to the presentence report, including the findings of fact and calculation
of her sentence, but requested a sentence of time served followed by a term of
supervised release. Ms. Hee also filed a formal motion for a downward variant
sentence for time served, based, in part, on: (1) her personal history and
characteristics involving her longstanding, significant history of abusing
prescription pain medications which she explained led to her arrest; (2) her
current sobriety and intent to maintain her sobriety through continued treatment;
(3) the fact other members of her organization were not charged or received
suspended sentences rather than incarceration; and (4) the evaluation of her
psychiatrist, which concluded her “criminal activity was the direct result of her
opiate dependence”; “her development of opiate dependence [was] primarily
explained by biological (genetic) and social (historical) factors”; and that through
an appropriate treatment plan “her opiate dependence” would “remain in
remission with minimal likelihood of further criminal activity” and she possessed
“a high likelihood of a future life that gives back to others.”
-8- At Ms. Hee’s sentencing hearing, the government called various witnesses
whose testimony fully corroborated the stipulated facts in the plea agreement.
One witness, who participated in Ms. Hee’s prescription drug trafficking
organization, testified Ms. Hee used her to obtain and sell prescription drugs; kept
her addicted to prescription drugs, including providing her fentanyl patches while
she was in a rehabilitation facility; and made her feel threatened. Another
government witness, a doctor, testified on how different opiates (like Percocet,
oxycodone, OxyContin, and fentanyl) and benzodiazepine drugs (like alprazolam
or Xanax) are addictive and can cause death; described fentanyl as a “very, very
powerful narcotic” considered to be a hundred times or so more powerful than
some of the standard narcotics; and explained that a mixture of an opiate and
benzodiazepine is even more addictive than with singular use. He also explained
Ms. Phillips’s autopsy revealed she had Ecstasy, cocaine, fentanyl and oxycodone
in her system in amounts sufficient to stop her from breathing; and Mr. Bennett’s
autopsy revealed he had fentanyl, Ecstasy, and MDA (another amphetamine drug)
in his body and that this “polypharmacy overdose” was the cause of his death.
The doctor also testified, as disclosed by Colorado Physician Drug Monitoring
Program records, on the type and unusually large quantity of drugs Mr. Bennett
was prescribed prior to his death and the type and unusually large quantity of
drugs Ms. Phillips, Ms. Hee, and others were prescribed prior to Ms. Phillips’s
death.
-9- A federal drug investigation agent also testified for the government and
provided testimony on the statements proffered by members of Ms. Hee’s drug
trafficking organization, including that they were referred by Ms. Hee to Dr.
Hoffman for the purpose of obtaining prescription drugs; Ms. Hee coached them
on what to do or say in order to obtain such drugs; Ms. Hee paid for the doctor
visits and the prescriptions; and, after they obtained the prescriptions, Ms. Hee
either split the drugs with them or payment was made based on their arrangement
with her. According to the agent, members of the organization also stated: (1)
Ms. Hee would control the drugs over addicted members of her organization; (2)
their addictions escalated once they became involved with her and she used their
hard-core addictions to obtain more pills and cash; and (3) none had been
addicted to the stronger drug, fentanyl, prior to their involvement with Ms. Hee,
but some began using it after she introduced it to them. He also testified with
regard to Ms. Hee’s ledger, which contained information on the amount and type
of drugs involved in her drug trafficking organization and money owed her, and
stated he learned Ms. Hee made approximately $40,000 a month selling drugs and
rented a luxury home in Evergreen, Colorado. The agent also provided
information obtained from a member of the organization who related Ms. Hee’s
statement to her that Ms. Hee put fentanyl on Mr. Bennett’s finger and he put his
finger in his mouth prior to his death. Finally, Ms. Phillips’s husband testified
that her addiction to prescription drugs increased and her behavior changed after
-10- she became involved with Ms. Hee, whom she met at a drug addiction/Narcotics
Anonymous program and who agreed to be her sponsor.
Following this evidence, Ms. Hee presented the testimony of her
psychiatrist who testified he performed the evaluation on Ms. Hee which her
counsel submitted into the record, Ms. Hee had previously made efforts to deal
with her opiate dependence, and she had no personality traits showing she preyed
on others or had sociopathic tendencies. In addition, Ms. Hee’s daughter
testified, explaining Ms. Hee has been a good mother, even though Ms. Hee had
been addicted the entire eighteen years of her life.
Following the submission of evidence and verification Ms. Hee did not
object to the calculation of her sentence, the district court determined, pursuant to
U.S.S.G. § 5G1.1(a), that her Guidelines sentence consisted of the 240-month
statutory maximum sentence, which was below the recommended Guidelines
range of 262 to 327 months imprisonment. It then granted the government’s
motion for downward departure, based on Ms. Hee’s substantial assistance, for
the purpose of departing from the 240-month Guidelines sentence and applying a
Guidelines range of 144 to 168 months imprisonment, to which neither party
objected. With regard to a variant sentence, it heard arguments from counsel,
including Ms. Hee’s counsel, who requested a sentence of time served and
-11- supervised release. In support of such a sentence, Ms. Hee’s counsel pointed out
other members of the drug organization received lesser sentences of only
supervised release and provided mitigating circumstances such as Ms. Hee’s own
drug addiction, need for treatment, and commitment to maintaining sobriety.
The district court also listened to Ms. Hee’s allocution, in which she stated
her letter to the court contained the statements she wished to make and that she
was sorry she was “in this position” and “put other people possibly in this
position” and felt terrible for her daughter. Following arguments and Ms. Hee’s
statement, the district court imposed an above-Guidelines sentence of 180 months
imprisonment. In explaining why other members of the drug organization
received lesser sentences, the district court noted only five other members of the
drug organization were charged and convicted, four of which received punishment
of supervised release because they were first-time offenders with Guidelines
ranges of zero to seven months, and the other, who had a higher Guidelines range
of forty-six months due to a prior criminal record, received a longer period of
supervised release. It then explained they were merely followers and younger
addicts who lacked experience and judgment, while Ms. Hee, an apparently more
sophisticated individual, operated and profited from her drug business; corrupted
and influenced naive, ignorant, and susceptible individuals; destroyed their and
their families’ lives; and did “absolutely nothing to slow down [her] continuing
-12- criminal enterprise” after the deaths of two young people in her organization. It
also explained Ms. Hee acted as the hub of the organizational wheel and that her
manipulation of those in her organization was inexcusably criminal and merited
severe punishment.
In further explaining the reason for a variant sentence, the district court
pointed out that while Ms. Hee talked about herself throughout her letter to the
court, she showed total indifference to others, including the two people who died,
and in reference to them merely stated, “[w]e didn’t intend it.” While it
acknowledged Ms. Hee’s psychiatrist’s suggestion she continue treatment rather
than be incarcerated and that pathological indifference to others is a characteristic
of addicts, the district court again pointed to Ms. Hee’s lack of remorse for the
death of the two individuals in her organization; the fact she went ahead with her
conspiracy to sell drugs after their deaths; and the fact that, after having treatment
during incarceration, her subsequent letter showing indifference to others did not
comport with her psychiatrist’s suggestion that treatment would correct such
indifference. It also pointed out that while Ms. Hee may be an addict, she “knew
how to get things done,” operated three businesses successfully, ran her drug ring
“for profit” making lots of money, and moved from a tiny bungalow to a mansion.
After explaining it considered the arguments of counsel, Ms. Hee’s statements
during her allocution and letter to the court, and the “enormity” of the evidence
-13- showing the number of people involved, the quantity of drugs, and the many lives
ruined by her organization, the district court stated:
I feel–it’s almost like trying to clean up the environment after a hurricane. It’s just so much devastation, loss that’s here, and is it all your fault? No. But you had such a significant role in it, and you have caused such great damage to people that I am going to impose a sentence quite different from that your attorneys have asked for and quite different from what I imposed on these other people.
Based on the findings that I have made, I’m not following the sentencing guidelines. ... But pursuant to [18 U.S.C. § 3553], I find that punishment is necessary, that deterrence can only be achieved in this case by a very severe sentence, [and] that while I do believe after reviewing the medical records that you do need to continue in psychological care and treatment ... that’s affordable ... in an institution of the bureau of prisons, ... society ... needs to be safe and needs to be rest assured that when somebody takes control of a drug ring and puts people in harm’s way, that they are going to be punished.
It then imposed an above-Guidelines-range sentence of 180 months imprisonment
and supervised release of three years. It also recommended the Bureau of Prisons
place Ms. Hee in an institution with access to mental and physical treatment for
her chronic pain and addiction and further conditioned her supervised release on
her participation in and successful completion of drug and mental health
programs.
II. Discussion
Ms. Hee now appeals her 180-month sentence on grounds it is procedurally
and substantively unreasonable based on the totality of the circumstances. We
-14- review a sentence for reasonableness, giving deference to the district court under
an abuse of discretion standard. See United States v. Smart, 518 F.3d 800, 802-
03, 805 (10th Cir. 2008). Thus, we review “‘all sentences–whether inside, just
outside, or significantly outside the Guidelines range–under a deferential abuse-
of-discretion standard’” in which we afford substantial deference to the district
courts. Id. at 806 (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). While
“[f]actual findings must be supported by a preponderance of the evidence,” we
have held “[a] district court may accept any undisputed portion of the presentence
report as a finding of fact.” United States v. Hooks, 551 F.3d 1205, 1217 (10th
Cir. 2009) (internal quotation marks omitted). As the trier of fact in a sentencing
proceeding, the district court also has the exclusive function of appraising the
credibility of the witnesses, determining the weight to give their testimony, and
resolving any conflicts in the evidence. See United States v. Leach, 749 F.2d 592,
600 (10th Cir. 1984).
“Our appellate review for reasonableness includes both a procedural
component ... as well as a substantive component, which relates to the length of
the resulting sentence.” Smart, 518 F.3d at 803. “Procedural reasonableness
addresses whether the district court incorrectly calculated or failed to calculate
the Guidelines sentence, treated the Guidelines as mandatory, failed to consider
the § 3553(a) factors, relied on clearly erroneous facts, or failed to adequately
-15- explain the sentence.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir.
2008). In determining whether the district court properly calculated a sentence,
we review its legal conclusions de novo and its factual findings for clear error.
See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).
However, when a defendant fails to raise an objection to the district court’s
calculation or explanation of a sentence, we review the district court’s
determination only for plain error. See United States v. Ruiz-Terrazas, 477 F.3d
1196, 1199 (10th Cir. 2007). 2
In turn, substantive reasonableness addresses whether the sentence length is
reasonable given all the circumstances of the case in light of the § 3553(a)
factors. See Huckins, 529 F.3d at 1317. Generally, an argument that the district
court gave undue weight to one factor over another challenges the substantive
reasonableness of a sentence. See Smart, 518 F.3d at 808. In reviewing the
substantive reasonableness of a sentence, “[w]e may not examine the weight a
district court assigns to the various § 3553(a) factors, and its ultimate assessment
of the balance between them,” but must “give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
2 “Plain error occurs when there is (i) error, (ii) that is plain, which (iii) affects the defendant’s substantial rights, and which (iv) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Ruiz-Terrazas, 477 F.3d at 1199.
-16- Id. (internal quotation marks omitted). “Although the degree of variance from the
Guidelines range remains a consideration on appeal, it may not define our
threshold standard of review.” Id. at 807 (internal citation omitted). In addition,
we do not require the § 3553(a) factors “reach some specific level of evidentiary
weight,” and “although a district court must provide a reasoning sufficient to
support the chosen variance, it need not necessarily provide ‘extraordinary’ facts
to justify any statutorily permissible sentence variance ....” Id.
In this case, Ms. Hee argues her sentence is procedurally unreasonable
because the district court “failed to give meaningful consideration to the § 3553
[sentencing] factors,” considering only the nature and circumstances of the
offense and need for punishment, rather than considering the other sentencing
alternative provided and her individual characteristics, including her own
addiction and positive attributes like her efforts to be present in her daughters’
lives, significant progress in participating in rehabilitation programs while
incarcerated; and unlikelihood to re-offend if given the proper treatment. Ms.
Hee suggests the district court concentrated too much on its own perception of her
indifference to others, which she suggests it derived merely from her letter to the
court and the singular statement of her psychiatrist that she is “[a]t times too self-
focused and does not consistently pay enough attention to the needs and feelings
of other people.” She argues the district court ignored not only her positive
-17- attributes, but the many mitigating statements she made to her psychiatrist, his
assessment of her personality traits, and his belief that rather than lengthy
incarceration, she should receive treatment through extended residential and
transitional living programs.
To the extent Ms. Hee is suggesting the district court failed to consider the
requisite § 3553(a) factors, we review such a procedural unreasonableness
argument for plain error based on her failure to raise an objection to the district
court’s calculation or explanation of her sentence. However, as the government
contends, the crux of her argument centers on her claim the district court failed to
give meaningful consideration to the § 3553(a) factors by giving undue weight to
one factor over another. This is a challenge to the substantive reasonableness of a
sentence. See Smart, 518 F.3d at 808. As to her explicit substantive
reasonableness argument, Ms. Hee claims her sentence is “greater than necessary
to satisfy the purposes of sentencing.” In support of this argument, she points
out: (1) “there is no indication” she gave Mr. Bennett or Ms. Phillips the drugs
leading to their deaths; (2) the individuals involved in the drug ring were already
drug addicts prior to meeting Ms. Hee; (3) the drug ring was the direct result of
her own severe addiction to prescription drugs; (4) others significantly involved
in the drug ring received far lesser sentences, including Ms. Wilfley, the next
most culpable individual, who received only a probationary sentence; and (5) her
-18- counsel fashioned an alternative sentence of an extended period of supervised
release and drug treatment that would have provided adequate deterrence,
protected the public, and provided her with needed treatment.
In conducting our review of the voluminous record in this case, including
the lengthy transcript of the sentencing proceeding, numerous exhibits, and the
parties’ multiple pleadings and arguments, we reject Ms. Hee’s claim the district
court failed to consider all of her personal history and characteristics and, instead,
impermissibly concentrated only on her indifference to others. In varying
upward, it explicitly stated it had considered the arguments of counsel, Ms. Hee’s
allocution and letter to the court, and the “enormity” of the evidence involved,
which included both Ms. Hee’s and the government’s evidence in favor of and
against a sentence of incarceration. Moreover, nothing in the record suggests the
district court ignored the statements she made to her psychiatrist, his assessment
of her personality traits, or his belief she would benefit from treatment through
extended residential and transitional living programs. Thus, it is clear it
considered not only the serious nature of Ms. Hee’s offense, her negative (if not
deadly) influence over those involved in her organization, and her indifference to
them, but also the characteristics on which her counsel relied in seeking a lesser
sentence, such as her own addiction to prescription drugs, efforts to be present in
her daughters’ lives, attempts at rehabilitation and progress in treatment programs
-19- while incarcerated, and argument she would be unlikely to re-offend if given the
proper treatment. However, after such consideration, it rejected her contention
mere supervised release and drug treatment would sufficiently punish her for her
crime, act as a deterrent, or protect the public. Instead, it expressly determined,
based on the circumstances presented, that punishment was necessary, deterrence
could only be achieved by a very severe sentence, and she could receive any
needed psychological and drug treatment while incarcerated and on supervised
release. Thus, contrary to Ms. Hee’s contention, it is clear the district court
considered the requisite sentencing factors, as required for a procedurally
reasonable sentence, and did not commit plain error.
With regard to the substantive reasonableness of Ms. Hee’s sentence, the
district court considered the sentencing factors and the evidence in support
thereof, and we may not examine the weight it assigned to the various § 3553(a)
factors or its ultimate assessment of the balance between them but must “give due
deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance.” Smart, 518 F.3d at 808. Moreover, while a
district court is required to provide reasoning sufficient to support the chosen
variance, it is not required to provide extraordinary facts to justify the statutorily
permissible sentencing variance or give mathematical precision to the § 3553(a)
factors for the purpose of reaching some specific level of evidentiary weight. See
-20- id. at 807.
Here, after making its credibility determinations and resolving any conflicts
in the evidence, the district court provided its reasoning for the variant sentence,
including its discussion of the very serious nature of Ms. Hee’s offense and
unfavorable history and characteristics, including her recruitment of young
addicts she ensured remained addicted and used to further her drug operation for
her own benefit; her blatant disregard for the lives of those to whom she sold
drugs; and her apparent indifference to those who died as a consequence of her
actions. 3 It also determined Ms. Hee remained unremorseful or indifferent to
3 While Ms. Hee contends on appeal that there is no indication she gave Mr. Bennett or Ms. Phillips the drugs leading to their deaths, evidence presented at trial clearly established those drugs came directly from Ms. Hee’s drug organization. Moreover, not only did Ms. Hee stipulate in her plea agreement that the offense to which she pled guilty resulted in Ms. Phillips’s and Mr. Bennett’s deaths and she organized and led the conspiracy which resulted in those two deaths, but testimony provided at sentencing also established she admitted to a member of her organization that she put fentanyl on Mr. Bennett’s finger and he put his finger in his mouth prior to his death.
Similarly, while Ms. Hee correctly claims the other individuals involved in her drug ring were addicts prior to meeting her, testimony at trial established she: (1) recruited them because of their addictions and her ability to manipulate them; (2) aided in the continuation of their addictions for the benefit of furthering her prescription drug conspiracy; and (3) introduced many of them to, and provided them with, the more powerful or hardcore prescription drug, fentanyl, which none of them had used before and which is much more addictive, and thereby more devastating, than the prescription drugs they previously used. In addition, evidence established Ms. Hee incredibly recruited Ms. Phillips into participating in her drug ring after meeting her at a drug counseling meeting, where Ms. (continued...)
-21- those she injured. 4 As a result, it determined punishment was necessary,
deterrence could only be achieved by a very severe sentence, and she could
receive psychological and drug treatment while incarcerated and later during
supervised release.
As to any discrepancy between the sentence Ms. Hee received and the
sentences of the five others involved in her drug organization who were also
convicted, we have held Ҥ 3553(a)(6) does not require the sentencing court to
compare the sentences of codefendants; rather, it looks to uniformity on a national
scale.” United States v. Ivory, 532 F.3d 1095, 1107 (10th Cir. 2008). We also do
not require a district court to distinguish the defendant’s characteristics and
history from those of the ordinary offender contemplated by the Guidelines, nor
do we require facts demonstrating the existence of extraordinary defendant
characteristics and history. See Smart, 518 F.3d at 806-08. “While similar
offenders engaged in similar conduct should be sentenced equivalently, disparate
3 (...continued) Phillips was attempting to overcome her addiction and Ms. Hee incredulously offered to act as her sponsor.
4 We have long recognized the defendant has the burden of proving by a preponderance of the evidence she accepted responsibility, see United States v. Spedalieri, 910 F.2d 707, 712 (10th Cir. 1990), and we have generally recognized that the district court is in a better position than us to weigh a defendant’s sincerity of remorse and contrition. See United States v. Ochoa-Fabian, 935 F.2d 1139, 1143 (10th Cir. 1991).
-22- sentences are allowed where the disparity is explicable by the facts on the
record.” United States v. Davis, 437 F.3d 989, 997 (10th Cir. 2006).
In this case, the district court elected to compare Ms. Hee and her co-
defendants for the purpose of addressing her argument for a lesser sentence. In so
doing, it carefully articulated the reasons for the disparity between Ms. Hee’s and
the other defendants’ sentences by explaining four of them had Guidelines ranges
of only zero to seven months, while another had a Guidelines range of
approximately forty-six months due to a prior criminal record. These are
substantially less than: (1) Ms. Hee’s initially-calculated Guidelines range of 262
to 327 months imprisonment; (2) the lesser statutory maximum sentence of 240
months for her offense; or (3) the downward departure range of 144 to 168
months granted by the district court. Not only does this offer an explanation of
why their sentences differed from Ms. Hee’s, but the district court also noted they
received variant sentences of supervised release because they were merely
followers who were much younger than Ms. Hee; lacked experience and
judgment; were corrupted, manipulated, and influenced by her; and otherwise had
their lives destroyed through their association with her.
In turn, the district court explained Ms. Hee received an above-Guidelines
variant sentence because she acted as the hub of the organization; operated and
-23- profited from her drug business; corrupted those who were younger, naive, and
susceptible in order to further her business; destroyed not only their but their
families’ lives; did nothing to curtail her criminal enterprise after the deaths of
two young people involved in her organization; and continued to show
indifference to others through her activities. While Ms. Hee may have had an
addiction to prescription drugs, it is evident from the record, and as indicated by
the district court, that she managed her addiction in a way which allowed her to
successfully operate a complex prescription drug operation, earn up to $40,000 a
month, and live in luxury, while those she supervised had their addictions escalate
after meeting her, were functionally consumed by their addictions, and had their
lives damaged or destroyed through their association with her.
In sum, without further reiterating the district court’s reasons for a variant
sentence or the evidence supporting it, its rationale is sufficiently compelling to
support the degree of the variance given, and it has satisfied us it considered the
parties’ arguments and the § 3553(a) sentencing factors and had a reasoned basis
for the variant sentence given. Ms. Hee has not otherwise demonstrated her
statutorily-permissible, variant sentence is either procedurally or substantively
unreasonable for the purpose of warranting reversal on appeal.
-24- III. Conclusion
Accordingly, we AFFIRM Ms. Hee’s 180-month term of imprisonment.
Entered by the Court:
WADE BRORBY United States Circuit Judge
-25-