                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 17a0160n.06

                                           No. 16-5360

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                                FILED
                                                                                 Mar 14, 2017
UNITED STATES OF AMERICA,                                )                   DEBORAH S. HUNT, Clerk
                                                         )
          Plaintiff-Appellee,                            )
                                                         )
                                                                ON APPEAL FROM THE
v.                                                       )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT FOR THE WESTERN
SEMITRA YOUNG,                                           )
                                                                DISTRICT OF TENNESSEE
                                                         )
          Defendant-Appellant.                           )




          Before: MERRITT, KETHLEDGE, and WHITE, Circuit Judges.

          KETHLEDGE, Circuit Judge. Semitra Young appeals her sentence for conspiracy to

distribute oxycodone and hydrocodone in violation of 21 U.S.C. §§ 841 and 846. Young argues

that her sentence was procedurally and substantively unreasonable. We reject her arguments and

affirm.

                                                 I.

          Young started using Lortab, a hydrocodone-based opioid, under a doctor’s supervision in

2008. By 2011, Young was addicted, taking ten to fifteen Lortab pills a day. When her doctor

refused to refill her prescription, Young looked for other ways to get drugs. She started small,

forging a single prescription for oxycodone, another opioid painkiller.       But soon she was

engaged in a criminal conspiracy involving thousands of pills from pharmacies across several

states.
No. 16-5360, United States v. Young


       In March 2012, police in Southaven, Mississippi arrested Young and another person after

they tried to fill a fraudulent prescription for Roxicodone, an oxycodone-based painkiller. When

the police searched Young’s car, they found fraudulent prescriptions for 1500 pills: 720 Lortab,

600 Roxicodone, and 180 Xanax, an alprazolam-based drug for anxiety. They also found a .380

caliber pistol, and several marijuana cigarettes. The officers then searched Young’s hotel room,

where they found more fraudulent prescriptions, this time for 1,680 Lortab, 640 Roxicodone, and

90 Xanax pills. They also found materials for making and forging prescriptions, including blank

prescription papers; a computer, printer, label maker, and paper cutter; and notebooks containing

doctors’ DEA numbers, which are identification numbers that allow registered health-care

providers to write prescriptions for narcotics.

       Three months later, police in Memphis stopped Young and searched her car. Inside her

purse, the police found 58 Xanax pills which, according to the label on the bottle, had been

prescribed to someone other than Young. The police also found several loose Xanax pills, a

hydrocodone pill, several fraudulent prescriptions, and blank prescription papers.

       Another three months later, in September 2012, Memphis police stopped Young again.

This time, they found a loose hydrocodone pill and an empty bottle of oxycodone, which again

was prescribed to someone other than Young. The police also found fraudulent prescriptions for

240 Roxicodone and 480 pills of Percocet—another oxycodone-based opioid—along with

notebooks containing information about the fraudulent prescriptions, and several blank

prescriptions made out in different names.

       In February 2013, Memphis police stopped Young for a third time, searched her car, and

found fraudulent prescriptions for 840 Lortab, 360 Roxicodone, and 120 Xanax pills.




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No. 16-5360, United States v. Young


       In early June 2013, Young and another person made two unsuccessful attempts at filling

fraudulent prescriptions in Tennessee and Arkansas. Later that month, Memphis police stopped

Young for a fourth time. When they searched her car, they found fraudulent prescriptions for

360 Lortab, 480 Roxicodone, and 360 Xanax pills.

       The police eventually determined that Young was part of a drug conspiracy, in which she

paid three people to help her fill fraudulent prescriptions, and then sold some of the drugs to

another dealer. Young’s method was as follows: first, she bought somewhere between 500 and

1,000 sheets of blank prescription paper; then she made fake prescriptions with the fraudulently-

obtained DEA numbers, as well as a phone number she controlled. If a pharmacy called to

inquire about a prescription, Young or a co-conspirator would answer and pretend to be from a

legitimate doctor’s office.

       In December 2014, the government charged Young with conspiracy to distribute, and

possess with intent to distribute, oxycodone and hydrocodone, in violation of 21 U.S.C.

§§ 841(b)(1)(c) and 846. Young pled guilty.

       The presentence investigation report estimated that Young was responsible for 6,300

oxycodone, 9,400 hydrocodone, and 820 Xanax pills, which were for sentencing purposes the

cumulative equivalent of 1275.75125 kilograms of marijuana. The report recommended upward

adjustments for Young’s leadership role and possession of a firearm, and a downward adjustment

for acceptance of responsibility, resulting in a total offense level of 33. The corresponding

sentencing guidelines range was 135 to 168 months.

       Young objected to the presentence report. She argued that she should not be punished for

prescriptions that she had written but not yet filled, nor for drugs she had kept for personal use.




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No. 16-5360, United States v. Young


Young also argued that her drug addiction, and the harshness of the oxycodone guidelines,

warranted a below-guidelines sentence.

          At Young’s sentencing hearing, the district court rejected her arguments and sentenced

her to 105 months’ imprisonment—the low end of the guidelines range, less 30 months for time

served on related state-law charges. This appeal followed.

                                                 II.

          We review Young’s sentence for an abuse of discretion. United States v. Coppenger, 775

F.3d 799, 802 (6th Cir. 2015).

                                                 A.

          Young argues that her sentence is procedurally unreasonable. A court errs procedurally if

it calculates a sentencing guidelines range incorrectly. Gall v. United States, 552 U.S. 38, 51

(2007). In a drug case, a guidelines range is incorrect if the court is wrong about the quantity of

drugs for which the defendant is responsible. United States v. Jeross, 521 F.3d 562, 569-70 (6th

Cir. 2008). Young contends that the court was wrong here because, when it found the quantity

of drugs for which she was responsible, it included prescriptions that she had written but not yet

filled.

          The court may count drugs that a defendant intended to obtain, and would have obtained,

but for logistical obstacles. See United States v. Vasquez, 560 F.3d 461, 472 (6th Cir. 2009).

And the quantity of drugs for which a defendant may be held responsible is not limited to drugs

that the police actually seize. See id.

          Here, the unfilled prescriptions that the court counted towards Young’s drug quantity

were prescriptions ready to be delivered to a pharmacy: they listed drug names and quantities,

and doctors’ names and DEA numbers. Young does not dispute that she filled or attempted to



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No. 16-5360, United States v. Young


fill many similar prescriptions. The evidence thus suggests that Young intended to obtain drugs

with the prescriptions, and would have done so had she not been arrested. The court did not err

by including the unfilled prescriptions in the calculation of her sentencing guideline range.

           Young responds by citing several cases where unfilled prescriptions were excluded from

sentencing calculations. See, e.g., United States v. Rodriguez-Iznaga, 575 F. App’x 583, 587

(6th Cir. 2014). But those cases involved potentially legitimate prescriptions written by medical

professionals. Here, none of the unfilled prescriptions were legitimate and the cases Young cites

are therefore inapposite.

           Young also contends that the court should not have counted drugs that she planned to use

herself.     In a drug conspiracy, however, drugs intended for personal use are counted for

sentencing purposes. United States v. Page, 232 F.3d 536, 542 (6th Cir. 2000). Thus, the court

did not err when calculating the drug quantity. Young’s sentence was procedurally reasonable.

                                                  B.

           Young also challenges the substantive reasonableness of her sentence, arguing that the

court should have given her a sentence below the guidelines range.            Specifically, Young

contends that the court should have departed downward because she is a drug addict, and

because the oxycodone-to-marijuana conversion ratio is unduly harsh. A district court may

depart from the sentencing guidelines range, but it is not obliged to do so. United States v.

Brooks, 628 F.3d 791, 800 (6th Cir. 2011). And a within-guidelines sentence is presumptively

reasonable. United States v. Kamper, 748 F.3d 728, 739-740 (6th Cir. 2014).

           Here, the court considered Young’s personal history and drug addiction, but ultimately

determined that Young’s repeated opportunities to end the conspiracy, and her leadership role in

a complex criminal scheme, called for a within-guidelines sentence.           Likewise, the court



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No. 16-5360, United States v. Young


considered Young’s argument about the oxycodone-to-marijuana ratio, but concluded that the

known dangers of oxycodone warranted a within-guidelines sentence.       The district court

therefore did not abuse its discretion, and Young’s challenge to her sentence’s substantive

reasonableness fails.

                                        *       *    *

       The district court’s judgment is affirmed.




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