U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008)
I was the appellate lawyer lawyer for Drs. David and Randall Chube on appeal to the Seventh Circuit Court of Appeals in the case of US v. Chube II, 538 F3d 693 (7th Cir. 2008). At the time of sentencing in that case, both the DEA attorney (the federal prosecutor) and the “PSR writer” (the author of the Pre-sentence Investigation Report) seemingly counted every prescription for controlled substances, whether it was criminal or not, as relevant conduct when applying the federal sentencing guidelines, and the District Court (trial court) sentenced accordingly, which greatly increased the length of sentence for each physician – five years for Dr. Randall Chube, and fifteen years for Dr. David Chube.
On appeal, the Seventh Circuit Court of Appeals found that the District Court relied upon insufficient evidence to prove the relevant conduct was criminal conduct. Both physicians sentences were vacated and the case was remanded back down to the District Court for re-sentencing. A short while later, the trial court released both physicians from prison pending re-sentencing, and both physicians served substantially shorter sentences when relevant conduct was determined correctly. That was seven years ago.
Not much has changed
I was recently retained to assist defense counsel with the sentencing of a physician in a state located within the Fifth Circuit Court of Appeals, and it seems not much has changed. Like in the Chube case, both the DEA attorney and the PSR writer make the mistake of seemingly counting every prescription for a controlled substance as relevant conduct, without first establishing that the relevant conduct was criminal conduct, when applying the sentencing guidelines. If the District Court adopts these computations by the PSR writer and the DEA attorney at the time of sentencing, the District Court will commit reversible legal error just as the District Court did in US v. Chube II, 538 F3d 693 (7th Cir. 2008).
Prescribing without a legitimate medical purpose
The civil standard of care and the criminal conviction standard are two distinct legal standards, yet these two legal standards are often substituted, confused, and/or conflated, by the DEA’s drug diversion investigators, the DEA’s attorneys, the federal prosecutors, the prosecution’s medical experts, and the PSR writer, during the investigation, the trial and at sentencing. Most often, the civil and criminal standards are conflated through the misapplication of the rule against prescribing without a legitimate medical purpose, discussed on the criminal violations page and elsewhere on this website. Unfortunately for physicians, when the criminal conviction standard is conflated with the civil standard of care, the criminal conviction standard is lowered, making numerous criminal convictions easier to win, and the relevant conduct necessary to further lengthen a sentence, easier to find. The burden is upon defense counsel and the courts to keep these two distinct legal standards separate.
Never forget that relevant conduct is criminal conduct
A violation of the civil standard of care (which may amount to professional negligence or medical malpractice) is not, without more, a drug crime. In other words, a physician may commit malpractice when prescribing controlled substances, but that does not mean the physician committed a crime. Never forget that relevant conduct is criminal conduct. Because a violation of the civil standard of care when writing a prescription for a controlled substance is not, without more, criminal conduct, it is not properly considered relevant conduct for purposes of sentencing. More is required. See U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008). By using an incorrect legal standard to determine which prescriptions are criminal, and therefore relevant conduct when applying the federal sentencing guidelines, a District Court will commit reversible legal error at the time of sentencing. It is incumbent upon defense counsel to preserve this legal error for appeal.