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Case 1:10-cr-00094-DB -PMW Document 274 Filed 12/15/11 Page 1 of 14

DAVID B. BARLOW, United States Attorney (#13117) MICHAEL KENNEDY, Assistant United States Attorney (#8759) RICHARD W. DAYNES, Assistant United States Attorney (#5686) CARLOS ESQUEDA, Assistant United States Attorney (#5386) ROBERT C. LUNNEN, Assistant United States Attorney (#4620) Attorneys for the United States of America 185 South State Street, Suite 300 Salt Lake City, Utah 84111 Telephone: (801) 524-5682 Facsimile: (801) 524-6924 e-mail: michael.kennedy@usdoj.gov

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff, vs. DEWEY C. MacKAY, III, Defendant.

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1:10 CR 94 DB SENTENCING MEMORANDUM

Judge Dee Benson Magistrate Judge Paul M. Warner

The United States of America, by and through the undersigned Assistant United States Attorney, hereby respectfully submits its Sentencing Memorandum in connection with the sentencing in this case.

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1. Statutory Mandatory Minimum, and Advisory Guideline Range. Because of the defendants conviction on Count 1, which alleged unlawful distribution of a Schedule II controlled substance the use of which resulted in death, pursuant to 21 U.S.C. 841(b)(1)(C) the defendant is subject to a mandatory minimum sentence of 20 years imprisonment. In this case, the Probation Office has additionally prepared a Presentence Report calculating the defendants Sentencing Guideline offense level as 40 and his Criminal History category as I, resulting in an advisory Guideline range of 292 to 365 months. Thus, the low end of the advisory Guideline range is approximately 4a years longer than the minimum mandatory sentence prescribed by statute. A sentence within the Guideline range would be presumed reasonable on appeal, but the sentencing court may not so presume, and must consider the factors in 18 U.S.C. 3553(a) in imposing sentence. Thus, in this case, the Court must sentence the defendant to the 20 year minimum mandatory sentence, but may vary below the advisory Guideline range to as low as the mandatory minimum. 2. Governments Recommendation for Minimum Mandatory Sentence. The government advises the Court that its position at sentencing will be that a sentence of 240 months, the mandatory minimum sentence, is a reasonable
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sentence in view of all of the factors under 18 U.S.C. 3553(a) and in light of the governments separate motions for forfeiture and restitution. 3. Application of 18 U.S.C. 3553(a) Factors to Defendants case. Subject to reasonableness review, the sentencing court has wide latitude to impose a sentence that varies from the Guideline range that, of course, is the central holding and result of Booker and its progeny. A sentence that differs from the Guideline range based on other 3553(a) factors would be a variance from the Guidelines, subject to reasonableness review. In contrast, a sentence that departs from the Guideline range, but which the sentencing court still considers a Guideline sentence, must be correctly calculated under the Guidelines.1 Additionally, the Courts discretion is constrained by any statutory mandates, such as are present in this case. As noted, 21 U.S.C. 841(b)(1)(C) requires the imposition of a sentence of 240 months. Applying these principles to the present case, it is the governments position that the minimum mandatory sentence of 20 years should be imposed because that

The government is unaware of any significant dispute between the parties as to the correctness of the Guideline calculation provided by the Probation Officer in the Presentence Report. The defendant has objected to particular facts described in the offense conduct narrative in the PSR, but other than suggesting that he should receive credit for acceptance of responsibility, he has not challenged the sentencing guideline offense level calculation. -3-

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sentence is reasonable under the circumstances of the case. Under 18 U.S.C. 3553(a), in imposing a sentence sufficient but not greater than necessary to (1) reflect the seriousness of the offense, promote respect for the law, and impose just punishment, and (2) afford adequate deterrence and protect the public from further crimes by the defendant, the Court is required to consider first, the nature and circumstances of the offense and the history and characteristics of the defendant, second, the kinds of sentences available, third, the Sentencing Guidelines themselves, fourth, the need to avoid creating unwarranted sentencing disparity, and fifth, the need to provide restitution to victims. A. Nature and circumstances of the offense and history and characteristics of the defendant. In the defendants case, the 20-year sentence meets the criteria set out in Section 3553(a). First, the nature and circumstances of the offense in this case are particularly egregious. One patient-victim of a charged count (Counts 1 and 2), David Wirick, died as a result of the defendants conduct. Because that one fact, which has been thoroughly explored both at trial and in other pleadings, and therefore will not be detailed here, drives the Sentencing Guidelines calculation, the PSR rightly focused on that conduct in particular. However, there also were

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eight other patient-victims related to counts of conviction. Kade Brown, Allan Starr, Jennifer Johnson, Billy Ray Cower, Robert Stubblefield, Scott Blanscett, Michelle Russell, and Kerri Parker were each victims of the defendants conduct for which he was convicted. In Parkers case, the evidence of the offenses for which the defendant was convicted included evidence that the offenses involved base and degrading sexual abuse of the patient by the defendant. Each of these individuals were repeatedly prescribed controlled substances by the defendant without a legitimate medical purpose. The defendants conduct was knowing and purposeful, as was clearly demonstrated by the recorded evidence introduced at trial, in which the defendant was heard in one instance to turn a blind eye to a patients acknowledgment that she was illegally diverting her prescribed drugs, and in several other instances was heard to prescribe controlled substances only after the patient assured him she was not a plant from the DEA or police. Testimony also demonstrated that he was warned about the dangers of his conduct by staff and colleagues, and ignored requests from patients families to curb his prescribing practices. Moreover, the defendants conduct was widespread, extending well beyond the nine patients involved in the counts of conviction. Trial evidence established
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that the defendant, operating out of a small office in a rural town in northern Utah, was among the top prescribers of Oxycodone and Hydrocodone products in the entire State for five consecutive years. This was no accident. Staff member testimony, colleagues testimony, billing records, scheduling records, and the testimony of the patients themselves all demonstrated that the defendant saw a volume of patients that allowed no more than a few brief minutes with each patient, and that no medical exams were performed. On the whole, the defendants medical practice consisted primarily asking the patients if they needed a refill and of what drug. The human wreckage caused by the defendants crimes was visibly and powerfully on display in the testimony of the patients themselves and of their families. Thus, even without considering the death resulting from the crimes in Counts 1 and 2, which alone justifies a sentence of 20 years, under the Sentencing Guidelines based solely on controlled substance amounts, the defendants recommended sentence would be significant. The government has calculated the amount of Oxycodone, Hydrocodone and Methadone that the defendant prescribed in the counts of conviction (based on the prescriptions admitted as Government Exhibit 19) and applied these to the Drug Quantity Table in the United States
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Sentencing Guidelines ( 2D1.1), with the following result: Total Oxycodone: 72,975 mg 1 g. Oxycodone = 6700 g. marijuana 72,975 mg Oxycodone = 488.93 kg marijuana Total Hydrocodone: 10,200 mg 1 g. Hydrocodone = 500 g. marijuana 10,200 mg Hydrocodone = 5.10 kg marijuana Total Methadone: 3,900 mg 1 g. Methadone = 500 g. marijuana 3,900 mg Methadone = 1.95 kg marijuana Total: 495.98 kg marijuana = Base Offense Level 28 (78-97 months). This, result, however, vastly underestimates the amount of controlled substances involved in this case, for several reasons. First, it does not account for additional prescriptions of controlled substances provided concurrently with the prescriptions for which the defendant was convicted. Generally, the defendant would provide a patient with a prescription for both a Schedule II opioid such as Oxycodone (e.g., Percocet) and a Schedule III opioid (Hydrocodone (Lortab)) during the same visit. In other instances, he would provide two Schedule II prescriptions, such as long-acting drugs/formularies like methadone or oxycontin and a short-acting formulary like Percocet. In either scenario, the second drug is relevant conduct, but has not been included in the above analysis.
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Second, the above analysis applies only to the patients in the counts of conviction, and then only to those particular patient visits. It is the governments position that all or most of the prescriptions provided by the defendant to the indictment patients on other visits also were illegal, and therefore relevant conduct, and that all or most of the prescriptions provided to other patients during the period from 2005 to 2010 covered by the Indictment also were invalid. The following analysis includes dismissed and acquitted counts in the drug quantities: ACQUITTED COUNTS PRESCRIPTION TOTALS: Total Oxycodone: 36,000 mg 1 g. Oxycodone = 6700 g. marijuana 36,000 mg Oxycodone = 241.20 kg marijuana Total Hydrocodone: 13,025 mg 1 g. Hydrocodone = 500 g. marijuana 13,025 mg Hydrocodone = 6.51 kg marijuana Total Methadone: 6,600 mg 1 g. Methadone = 500 g. marijuana 6,600 mg Methadone = 3.30 kg marijuana Total MSContin (Morphine): 13,500 mg 1 g. Morphine = 500 g. marijuana 13,500 mg MSContin = 6.75 kg marijuana Total for acquitted Counts: 257.77 kg marijuana equivalent (kME) additional.

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DISMISSED COUNTS PRESCRIPTION TOTALS: Total Oxycodone: 96,900 mg 1 g. Oxycodone = 6700 g. marijuana 96,900 mg Oxycodone= 649.23 kg marijuana Total Hydrocodone: 32,750 mg 1 g. Hydrocodone = 500 g. marijuana 32,750 mg Hydrocodone = 16.38 kg marijuana Total Methadone: 1,200 mg 1 g. Methadone = 500 g. marijuana 1,200 mg Methadone = 0.60 kg marijuana Total MSContin (Morphine): 1,800 mg 1 g. Morphine = 500 g. marijuana 1,800 mg MSContin = 0.90 kg marijuana Total for Dropped Counts: 667.11 kg marijuana equivalent (kME) additional Acquitted Total (257.77 kME) + Dropped Count Total (667.11 kME) = 924.88 kg marijuana equivalent (kME) additional Guilty Count Total (495.98 kME) + Acquitted/Dropped Count Total (924.88 kME) = 1420.86 kg Marijuana Equivalent =Base level 32 ( >1,000 kg <3000 kg.) Finally, this analysis only accounts for prescriptions to patients referenced in the original indictment. Hundreds of other patients received similar levels of controlled substances from the defendant under similar circumstances. Thus,

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under an extremely conservative estimate of drug quantities involved in this case, and without accounting for the death of a patient resulting from the defendants conduct, a low-end Guideline sentence of 121 months would have been recommended on the basis of drug quantities alone. A sentence of 240 months with these quantities of drugs, and the death of David Wirick, is appropriate. Balanced against the nature and circumstances of the offense are the defendants history and characteristics. In this case, the defendant has accepted no responsibility for his crimes, he committed perjury with respect to counts relating to Kerri Parker, and has shown no remorse. The government acknowledges that a large number of letters were submitted on his behalf, attesting to his good character and charitable deeds in the community. No doubt the defendant did perform many good deeds in his community over the years. And no doubt the defendant presented himself to these individuals in the manner in which they portray him. Their letters, however, in most instances, demonstrate little or no first-hand knowledge of how the defendant was practicing medicine, of his conduct with particular patients such as Kerri Parker, or even of the coarse language he would use in his interactions with patients like Parker. In short, the defendant was leading a double life with his crimes largely hidden from his
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present supporters. Charitable deeds in the community cannot negate the effect of the serious offenses committed by the defendant. B. Kinds of sentences available. In this case, pursuant to statute, the kind of sentence available is limited to incarceration for a minimum of 20 years. Congress, in exercising its authority to define the parameters of federal crimes and the sentences imposed for those crimes, has determined as a matter of policy and law that in cases of unlawful distributions of Schedule II drugs where use results in death, a sentence of at least 20 years is sufficient but not greater than necessary to reflect the seriousness of the offense, promote respect for the law, and impose just punishment. Neither the Court nor the government is at liberty to abrogate that law in the absence of an exception to its application authorized by Congress. No such exception applies in this case, and therefore the kind of sentence available and the minimum length of that sentence is limited to that required by Congress. C. The Sentencing Guidelines. The Sentencing Guidelines in this case suggest a sentence longer than the minimum mandatory sentence, which is the sentence the government recommends in this case. The Court has authority to sentence below the advisory Guideline
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range, down to the minimum mandatory sentence, and the government in this case views the exercise of that authority as resulting in a reasonable sentence. D. Unwarranted sentencing disparity. Imposition of a 20-year sentence in this case affirmatively avoids the creation of an unwarranted sentencing disparity between this defendant and other defendants convicted of similar crimes. The minimum mandatory sentence for this offense is applied across-the-board to all defendants convicted of the same crime as the defendant, without respect to whether the drug involved was a street drug such as methamphetamine or cocaine, or a prescription drug such as Oxycodone as in this case. It also applies evenly to anyone who commits the crime, whether as a street dealer or as a physician acting outside the bounds of professional practice. The government avers that this is as it should be there is no functional difference between the defendants conduct in this case, and that of a street dealer of heroin or stolen Oxycodone. E. The need to provide restitution to victims. In this case, the government has moved this Court to order a substantial amount of restitution. The government believes, as stated in its sealed restitution memorandum, that the defendant has the resources to pay the restitution moved for
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by the government. Thus, the required sentence in this case, even though long, will not adversely effect the need to provide restitution. 4. Conclusion. Based on the foregoing, the government respectfully avers that in sentencing the defendant in this case that a sentence of 240 months incarceration, the minimum required by statute, is sufficient but not greater than necessary to reflect the seriousness of the offense, promote respect for the law, and impose just punishment in light of all of the factors set forth in 18 U.S.C. 3553(a), and requests that sentence be imposed as recommended.

DATED:

December 15, 2011.

DAVID B. BARLOW United States Attorney

/s/

Michael Kennedy

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MICHAEL P. KENNEDY Assistant United States Attorney

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that I am an employee of the United States Attorneys Office, and that a copy of the foregoing was caused to be served on all persons named below, either by electronic filing notice, U.S. Mail (postage prepaid), or hand delivery, on December 15, 2011.

Peter Stirba Nathan Crane Blake Hamilton Kathleen Abke Attorneys for Defendant Dewey C. MacKay, III 215 South State Street, Ste. 750 Salt Lake City, UT 84111

/s/

Michael Kennedy

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