United States v. Hee

FILED
United States Court of Appeals
Tenth Circuit

May 2, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 12-1434
v. (D.Ct. No. 1:11-CR-00188-JKL-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This order and judgment is not binding precedent except under the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

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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

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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.

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 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

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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

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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.

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 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.”

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 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.

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 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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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...)

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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).

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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

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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.

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 III. Conclusion

Accordingly, we AFFIRM Ms. Hee’s 180-month term of imprisonment.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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