United States v. Stella

United States Court of Appeals
For the First Circuit

No. 08-2513

UNITED STATES OF AMERICA,

Appellee,

v.

DEBORAH STELLA,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl, Circuit Judge, and DiClerico,* District Judge.

Syrie D. Fried for appellant.
James E. Arnold, Assistant United States Attorney, with whom
Randall E. Kromm, Assistant United States Attorney, and Michael K.
Loucks, Acting United States Attorney, were on brief for appellee.

December 18, 2009

*
Of the District of New Hampshire, sitting by designation.
 LYNCH, Chief Judge. Deborah Stella, a Registered Nurse

(RN), worked at the Lawrence General Hospital (LGH) from 2005 to

2007. In 2008, she pled guilty to three counts of tampering with

a consumer product, 18 U.S.C. § 1365(a)(4), three counts of

obtaining controlled substances by deception and subterfuge, 21

U.S.C. § 843(a)(3), and two counts of making false statements to

federal investigators looking into her drug tampering, 18 U.S.C.

§ 1001(a)(2). More specifically, she took for her own use pain

killers meant for patients at LGH who were in pain and were at

times recovering from surgery, and hid her thefts.

Stella was sentenced to a term of imprisonment of fifty-

four months, to three years of supervised release, and to pay a

special assessment and restitution. She appeals, arguing that the

district court committed error in enhancing her sentence under

U.S.S.G. § 3B1.3 for abuse of a position of trust, in enhancing the

sentence because there were vulnerable victims under U.S.S.G.

§ 3A1.1(b), and in its choice as to how to group the offenses,

which also resulted in an enhancement. There was no error and we

affirm the sentence.

I.

The undisputed facts before the district court at

sentencing are drawn from the pre-sentence report (PSR) and the

transcript of the sentencing hearing. See, e.g., United States v.

Arbour, 559 F.3d 50, 51 (1st Cir. 2009).

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 Stella obtained her nursing license from the

Massachusetts Board of Licensing in Nursing in 2005 and went to

work for LGH. Stella worked on H4, a nursing floor primarily

occupied by patients recovering from surgery. As an RN at LGH,

Stella had some independent responsibilities for caring for her

patients, which included ensuring they received proper treatment,

recording her own assessments of patients' condition on their

charts, and keeping doctors informed of patients' progress. She

also had unsupervised authority to provide her patients with

prescribed medication "as needed" and was expected to challenge

doctors' chosen prescriptions when she considered them

inappropriate.

Stella was also entrusted with access to the floor's

locked "meds room," which contained prescription drugs and other

controlled substances, by being given an electronic badge required

to open the room's door and keys to the double-locked cabinet in

which controlled substances were kept.

Between September and December 2006, Stella stole

controlled substances from LGH for her own use. She took drugs

from the locked cabinet. She also took vials of the pain

medications Meperidine Hydrochloride (Demerol) and Morphine Sulfate

in patients' patient-controlled analgesia (PCA) pumps,1 replacing

1
PCA pumps allow patients to individually control the
delivery of their pain medications. See Stedman's Medical
Dictionary 69, 1314 (26th ed. 1995).

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saline solution in the vials to conceal her theft. She also

tampered with controlled substances in the meds room's locked

cabinet, emptying vials of Morphine Sulfate with a hypodermic

needle, injecting herself with the contents, refilling the empty

vial with saline, and restoring the saline-filled vial to its

original packaging.

In one instance, Stella removed a pain-killing Fentanyl

patch from a patient, cut off part of the patch, and re-affixed the

altered patch to the patient's chest; in another, she administered

a used patch to a ninety-two-year-old patient while keeping the new

patch for herself.

As a result of Stella's tampering, affected drugs were

often left with less than 1 percent of their active, pain-killing

ingredients. "[A]ny patient who might have received one of the

tampered-with vials would not have received adequate pain

medication and would therefore have continued to suffer pain." PSR

¶ 27.

In September 2006, LGH began to investigate suspected

tampering with controlled substances on H4. The hospital

implemented various security procedures to prevent further

tampering and met individually with each nurse on the floor.

Nurses were informed of substance abuse programs provided by the

hospital and warned that LGH's willingness to support whoever was

responsible for the incidents would expire on October 23, 2006.

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Stella did not, at that point, come forward, and the tampering

continued.

By December 2006, suspicion had focused on Stella. In

two separate interviews with federal agents from the Food and Drug

Administration on December 18 and 21 of that year, Stella denied

taking any drugs from the hospital. On the afternoon of December

21, she contacted the agents and scheduled a meeting for the

following day. At that meeting, Stella admitted responsibility for

the drug tampering and executed a written confession.

On August 1, 2007, a grand jury returned a superseding

indictment charging Stella with four counts of tampering with a

consumer product, 18 U.S.C. § 1365(a)(4) (counts one, three, five,

and seven), four counts of obtaining controlled substances by

deception and subterfuge, 21 U.S.C. § 843(a)(3) (counts two, four,

six, and eight), and two counts of making false statements, 18

U.S.C § 1001(a)(2) (counts nine and ten). On January 17, 2008,

Stella pled guilty to counts one through four and seven through

ten. The district court granted the government's motion to dismiss

the remaining two counts on January 23, 2008.

At the sentencing hearing on November 18, 2008, both

sides submitted sentencing memoranda challenging aspects of the

PSR's recommended guideline calculations. The district court used

the 2008 version of the sentencing guidelines and applied U.S.S.G.

§ 2N1.1, which governs tampering with consumer products involving

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a risk of death or bodily injury and has a base offense level of

twenty-five. The court then heard arguments on four disputed

calculations: grouping of offenses and enhancements for a victim's

serious bodily injury,2 for vulnerable victims, and for abuse of a

position of trust.

The district court agreed with the PSR's recommended

separate grouping of counts one through four, which involved

Stella's tampering with vials in the locked meds room, and counts

seven and eight, which involved the incident in which Stella cut

off part of a patient's Fentanyl patch. The district court

considered the purpose of U.S.S.G. § 3D1.2, reasoning that "if

there are harms directed at different recipients of harm, the

normal rule would not be to group [those counts together]."

Because the victims of counts one through four––LGH and the

individual patients who might have received diluted drugs––were

different than the identified victim of counts seven and eight, the

court determined that those counts should be grouped separately.

The court further held that the obstruction of justice counts

should not be grouped separately but instead should be included as

a two-level enhancement to each of the two groups.

2
The district court declined to apply the PSR's
recommended two-level enhancement under U.S.S.G. § 2N1.1(b)(1)(B)
for a victim sustaining serious bodily injury. The government did
not appeal that determination.

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 The district court also applied the two-level vulnerable

victim enhancement under U.S.S.G. § 3A1.1(b) to both groups of

counts. The court explained that both the identified victim of the

Fentanyl-patch incident and the patients put at risk by Stella's

dilution of medication were "people who were vulnerable by reason

of their illnesses and the need for medication . . . to the harm

that would be done by being given adulterated pain medication."

Finally, the district court found that Stella's offenses

merited a further two-level enhancement under U.S.S.G. § 3B1.3 for

abuse of a position of public trust, noting that it was

"unnecessary" to address whether there was an abuse of private

trust.3

After a three-level reduction for Stella's acceptance of

responsibility, Stella's final adjusted guideline level was thirty,

which corresponded to a suggested sentencing range of ninety-seven

to one hundred twenty-one months' imprisonment. The district court

ultimately sentenced her to a below-guidelines sentence of two

concurrent fifty-four month terms of imprisonment followed by three

years of supervised release and required her to pay a special

assessment and restitution.

3
The guidelines commentary does not enumerate differences
between positions of public and private trust, treating the two as
identical for purposes of the sentencing enhancement. See U.S.S.G.
§ 3B1.3 & cmt. n. 1.

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 II.

We review claims of sentencing error in the application

of the guidelines on a sliding scale. Pure issues of law, such as

interpretations of the guidelines, are reviewed de novo; findings

of fact are reviewed for clear error; and there is a continuum

between those two poles. United States v. Sicher, 576 F.3d 64, 70

(1st Cir. 2009); see also United States v. McElroy, Nos. 08-2088,

08-2471, 2009 WL 3932266, at *12 (1st Cir. Nov. 20, 2009).

A. Enhancement for Abuse of a Position of Trust

The district court found that Stella had abused a

position of public trust because Stella had received the "special

license for medical personnel to handle highly controlled

medications" and then in fact had abused that license:

[T]he seriousness of the offense is not to be
minimized. Not only did it have real effects on
real people, and in some cases very substantial and
serious effects, it also was . . . an abuse of the
position that is entrusted by the community in
people who are licensed to deal in . . .
controlled substances.

It . . . involved a course of conduct over a
period of time, which meant it was not isolated
impulsive choices, but . . . reflects . . .
deliberation and conscious choice.

We evaluate the conclusion against the text of the

relevant guideline, which provides "[i]f the defendant abused a

position of public or private trust . . . in a manner that

significantly facilitated the commission or concealment of the

offense, increase by 2 levels." U.S.S.G. § 3B1.3. In turn, the

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guideline's commentary defines a position of public or private

trust as follows:

"Public or private trust" refers to a position of
public or private trust characterized by
professional or managerial discretion (i.e.,
substantial discretionary judgment that is
ordinarily given considerable deference). Persons
holding such positions ordinarily are subject to
significantly less supervision than employees whose
responsibilities are primarily non-discretionary in
nature . . . .

U.S.S.G. § 3B1.3 cmt. n. 1. The government must show by a

preponderance of the evidence both that the position was one of

public or private trust and that the position was abused. Sicher,

576 F.3d at 71.

Stella argues only that she did not occupy a position of

trust because, she asserts, she did not have "any degree of

professional or managerial discretion."

The district court did not go into detail as to its

conclusion that Stella had exercised such "professional"

discretion, nor did it need to do so. The reason is evident from

the record. Sicher, 576 F.3d at 71; see also United States v.

Hoey, 508 F.3d 687, 694 (1st Cir. 2007); United States v. Jiménez-

Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc).

"[T]he relevant inquiry is whether the person in fact

occupied a position of trust."4 Sicher, 576 F.3d at 72 (quoting

4
We do not adopt any per se rule that all defendants who
hold an RN license automatically hold a position of trust,
regardless of the facts of the case. See United States v. Sherman,

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United States v. Chanthaseng, 274 F.3d 586, 589 (1st Cir. 2001))

(internal quotation marks omitted). Stella worked independently of

regular supervision when caring for her patients and had authority

to provide patients with their prescribed medications. She had

unsupervised access to drugs in the locked meds cabinet and

unsupervised authority to refill medications in PCA pumps.

Further, at LGH, some medications were prescribed on an "as needed"

basis, giving nurses discretion as to when medications were to be

provided. And at LGH an RN such as Stella was expected to review

prescriptions and, if a patient failed to properly respond, to

recommend different medication.

The district court correctly rejected Stella's argument

that the existence of a regulatory structure for registered nurses

meant she had no professional or managerial discretion. The logic

of the argument runs flatly contrary to the guidelines' reference

to "professional" discretion. By definition, professionals are

subject to regulation in their professions; those regulations

largely exist because of the responsibilities and discretion vested

in professionals. It is relevant to whether there is a position of

public trust if "the public expects that people in the position of

the defendant will comply with health and safety regulations."

United States v. Gonzalez-Alvarez, 277 F.3d 73, 81 (1st Cir. 2002)

160 F.3d 967, 970-71 (3d Cir. 1998) (rejecting the argument that
possession of a professional license per se mandates a § 3B1.3
enhancement).

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(holding that milk producers who adulterated milk held positions of

public trust). Massachusetts's regulatory regime for registered

nurses bears out the existence of the public's expectation that

these professionals will comply with relevant laws to protect

patients.

Under both Massachusetts law and in actual practice,

Stella could administer controlled substances to patients under

specified conditions. Mass. Gen. Laws ch. 94C, § 9. She was

"directly accountable for [the] safety of the nursing care [s]he

deliver[ed]." Mass. Gen. Laws ch. 112, § 80B. Her nursing

practice included "the application of nursing theory to the

development, implementation, evaluation and modification of plans

of nursing care for individuals." Id. She was to manage resources

for delivering care and could delegate selected activities to

unlicensed personnel. 244 Mass. Code Regs. 3.02. Under the state

regulations she had "ultimate responsibility for direct and

indirect nursing care," which included "planning and restoration

for optimal functioning and comfort, of those [she] serve[d]." Id.

3.01. The record shows that Stella in fact had such

responsibilities at the hospital.5

5
There is also some Massachusetts decisional law that
explicitly says licensed RNs should exercise independent judgment.
See Hohenleitner v. Quorum Health Res., Inc., No. Civ. A. 94-00316,
1999 WL 317227, at *6 (Mass. Super. Ct. 1999) (noting that an RN
had "a legal and professional obligation to . . . make her own
independent nursing judgments").

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 While the public would expect that an RN would not

deliberately take steps that would harm patients, here, because of

the unfettered access given to nurses in Stella's unit, it is

evident that the hospital trusted those nurses to exercise proper

discretion in the handling of prescription medications.

The district court properly concluded that Stella in fact

served in a position of public trust and that she had abused her

position of trust.6 The decision was entirely supported in federal

sentencing precedent. See United States v. Segura, 139 Fed. App'x

79, 80-81 (10th Cir. 2005) (upholding the application of § 3B1.3 to

a registered nurse who had "[taken] narcotics for his own use, and

replaced the stolen narcotics with either saline solution or other

drugs");7 United States v. Wilson, No. CV-05-302-S-BLW, 2006 WL

1663244, at *4 (D. Idaho May 30, 2006) (applying § 3B1.3 in part

because the "[d]efendant's position as a registered nurse in [a]

pediatric unit . . . enabled her to both commit and conceal the

offense of tampering with the drugs in the unit").

6
This case is a far cry, for instance, from United States
v. Parrilla Román, 485 F.3d 185 (1st Cir. 2007), in which two
airline fleet service clerks were held not to occupy positions of
trust merely because they had access to secure areas. Id. at 191-
92. Both clerks otherwise were supervised and acted without
discretion. Id. at 192.
7
The Tenth Circuit permits citation of unpublished
decisions for their persuasive value. 10th Cir. R. 32.1(A); see
also Fed. R. App. P. 32.1.

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B. Vulnerable Victim Enhancement

When a defendant's victims are not just victims but

"vulnerable" victims, society attaches greater blame, and the

guidelines provide for a sentencing enhancement. See U.S.S.G.

§ 3A1.1(b); United States v. Fosher, 124 F.3d 52, 55-56 (1st Cir.

1997); see also H.R. Rep. No. 104-548, at 2 (1994) (discussing

enhanced sentencing for offenses that "victimize the most

vulnerable in society" and noting "society's intolerance for these

heinous crimes").

The guidelines provide that the vulnerable victim

enhancement applies "[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). This is a two-prong test. In order to apply the

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. Donnelly, 370 F.3d 87, 92 (1st

Cir. 2004) (quoting United States v. Gill, 99 F.3d 484, 485 (1st

Cir. 1996)); see also United States v. Bailey, 405 F.3d 102, 113

(1st Cir. 2005).

The district court found that the vulnerable victim

enhancement applied to counts seven and eight, which addressed the

identified patient whose skin patch was altered. The court also

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applied the enhancement to counts one through four, which addressed

the unidentified patients put at risk by Stella's dilution of

medicine, who were vulnerable "by reason of their illnesses and the

need for medication."

Stella asserts that the district court erred with regard

to the first prong, the vulnerability of the victim.8 Stella's

primary argument is that the victims of her crimes were no more

vulnerable than the average member of the general public who is

harmed by product tampering. The commentary to U.S.S.G. § 3A1.1(b)

instructs that "'vulnerable victim' means a person . . . who is

unusually vulnerable due to age, physical or mental condition, or

who is otherwise particularly susceptible to the criminal conduct."

U.S.S.G. § 3A1.1 cmt. n. 2. The district court correctly noted

that these patients, unlike the general public, had no way to help

themselves or, because of their pain and their medical conditions,

to detect or prevent against the drug dilution, and so were

vulnerable within the meaning of § 3A1.1(b). See Fosher, 124 F.3d

at 55-56; Gill, 99 F.3d at 486.

Stella also argues that any special victim vulnerability

is incorporated into the high base offense level (twenty-five)

applicable to the offense of product tampering, U.S.S.G. § 2N1.1,

8
With regard to the second prong, which focuses on the
defendant’s knowledge, there is no doubt that Stella, a registered
nurse, knew or should have known of her victims' unusual
vulnerability, both physical and mental.

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and applying the enhancement results in double counting. The focus

of § 2N1.1, however, is the harm or risk of harm to the victim,

while the focus of § 3A1.1(b) is the vulnerability of the victim

and the defendant's awareness of that vulnerability. Not all acts

of product tampering involve vulnerable victims; therefore there is

no double counting.9 Cf., e.g., United States v. Beltran, 503 F.3d

1, 3 (1st Cir. 2007) (holding that, in a copyright-infringement

conviction, an enhancement for manufacturing is not double counting

because "not all infringement involves manufacturing"); United

States v. O'Brien, 435 F.3d 36, 42 (1st Cir. 2006) (applying the

special skill enhancement during sentencing for intentionally

causing damage to a computer used in interstate commerce was not

double counting because "the use of special computer skills is . .

. not an element of the statutory offense"). The district court's

application of the vulnerable victim enhancement was proper.

9
The notes to some guidelines expressly prohibit applying
certain enhancements because doing so would lead to double
counting. For instance, when a sentence is imposed under the
guideline governing use of a firearm while committing a crime “in
conjunction with a sentence for an underlying offense, any specific
offense characteristic for explosive or firearm discharge, use,
brandishing, or possession is not applied.” U.S.S.G. § 2K2.4
background cmt. Section 2N1.1 contains no such prohibition.
Moreover, with regard to the guidelines generally, “double counting
is often perfectly proper.” United States v. Lilly, 13 F.3d 15, 19
(1st Cir. 1994). “We believe the [Sentencing] Commission’s ready
resort to explicitly stated prohibitions against double counting
signals that courts should go quite slowly in implying further such
prohibitions where none are written.” Id.

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C. Grouping

Section 3D1.2 of the sentencing guidelines provides that

in multicount indictments, "[a]ll counts involving substantially

the same harm shall be grouped together into a single Group."

Grouped conduct is "treated as constituting a single offense for

purposes of the guidelines." U.S.S.G. § 3D introductory cmt.

Among the goals of grouping is "to prevent multiple punishment for

substantially identical offense conduct." Id. The guidelines'

drafters explained that "[a] primary consideration" when

determining whether to group particular conduct "is whether the

offenses involve different victims." U.S.S.G. § 3D1.2 background

cmt; see also United States v. Vasco, 564 F.3d 12, 23 (1st Cir.

2009); United States v. Hernandez Coplin, 24 F.3d 312, 319 n.7 (1st

Cir. 1994).

The district court split the counts into two groups, one

for counts one through four and another for counts seven and eight.

The victims of the crimes charged in the first group were LGH and

its patients who could have received the adulterated vials; the

victim of the crimes charged in the other group was the particular

patient from whom Stella removed and cut the Fentanyl patch.

Stella argues that these counts should have been a single group and

the court erred in separating them.

We bypass the government's argument that Stella did not

preserve her appellate argument because she presented a different

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argument to the district court. On appeal, she contends that there

was only one scheme--to obtain drugs for herself--and only one

victim, the hospital. At most, she says, the patients were

indirect victims.

The grouping guidelines recognize the relationship

between an appropriate sentence and the types and numbers of

victims. Whether distinct victims were injured as part of a single

scheme is beside the point; indeed, the guidelines' drafters

considered and rejected a common "transaction or occurrence"

approach to grouping, in favor of the "different victims" approach.

See U.S.S.G. § 3D1.2 background cmt; see also Vasco, 564 F.3d at 23

("Crimes involving multiple victims, even if the offenses arose out

of a single event, are properly grouped separately.").

The district judge here got it right. Those who faced

the risk of receiving adulterated vials and the hospital itself

were sufficiently different from the skin-patch victim to take that

into account at sentencing. The independent harms and risks of

harm each group suffered were sufficiently "direct[]" and

"serious[]" to render them primary victims. U.S.S.G. § 3D1.2 cmt.

n. 2; see also United States v. Nedd, 262 F.3d 85, 92 (1st Cir.

2001). The fact that no identified patients suffered bodily injury

does not affect our conclusion. See, e.g., Vasco, 564 F.3d at 22-

23 (affirming the district court's separate grouping of counts

involving two targets of a failed "murder-for-hire" plot); Nedd,

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262 F.3d at 92 (holding that harassment and threats were sufficient

to qualify individuals as primary victims absent any physical

injury).

Finally, we flatly reject Stella's argument that in a

multicount indictment, "multiple groups for separate victims of

tampering are appropriate only when multiple victims have suffered

at least serious bodily injury." Nothing in U.S.S.G. § 2N1.1(d)

says any such thing. To the contrary, the special instruction on

which Stella relies expressly deals with convictions on a single

count of tampering that resulted in either "the death or permanent,

life-threatening, or serious bodily injury" of multiple victims or

"conduct tantamount to the attempted murder of more than one

victim." U.S.S.G. § 2N1.1(d). It makes no mention of multicount

indictments and is not relevant here.

Stella concedes that her reading of the guideline has no

basis in First Circuit precedent. Her effort to impose a "serious

bodily injury" requirement for victims of product-tampering

offenses is also expressly contradicted by the guideline's

commentary. U.S.S.G. § 2N1.1's commentary emphasizes that the

guideline encompasses tampering that "causes, or is intended to

cause, bodily injury," id. cmt. n. 1, defined elsewhere as "any

significant injury[,] e.g., an injury that is painful and obvious"

or one "for which medical attention ordinarily would be sought,"

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U.S.S.G. § 1B1.1 cmt. n. 1(B). Stella's interpretation erroneously

narrows the guideline's scope.

III.

We affirm the sentence.

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