     Case: 14-10165   Document: 00513379149       Page: 1   Date Filed: 02/12/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                   No. 14-10165
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
UNITED STATES OF AMERICA,                                     February 12, 2016
                                                                Lyle W. Cayce
             Plaintiff–Appellee,                                     Clerk

v.

WALTER R. HUDSPETH; JOESEPHIS AUSTIN; PATRICIA A. BRYANT,

             Defendants - Appellants

_________________________

Cons w/ 14-10843

UNITED STATES OF AMERICA,

            Plaintiff - Appellee

v.

LISA L. HOLLIER,

            Defendant - Appellant



                Appeals from the United States District Court
                     for the Northern District of Texas
                          USDC No. 3:12-CR-211-9


Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
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PER CURIAM:*
       Defendants Walter Hudspeth, Joesephis Austin, Patricia Bryant, and
Lisa Hollier challenge the sufficiency of the evidence supporting their
convictions for conspiracy to distribute hydrocodone outside the scope of
professional practice and without a legitimate medical purpose. Hudspeth also
challenges the district court’s decision to depart upwards from the Sentencing
Guidelines in imposing his 72-month sentence. We affirm.
                                             I.
       Dr. Nicholas Padron, a physician, operated a clinic where he wrote
illegitimate prescriptions to patients seeking hydrocodone in exchange for
cash. He pled guilty and served as the lead witness for the government against
defendants, who pled not guilty and proceeded to trial. Padron testified that
he obtained new patients through the use of “patient herders,” or individuals
who would bring new patients to the clinic in exchange for cash or free medical
services. He prescribed Xanax, promethazine with codeine, and hydrocodone,
often without examining the patients brought in by the herders. At trial,
Padron identified Hudspeth, Austin, and Bryant as patient herders. Hollier
was the pharmacist in charge of Urban Independent Pharmacy, where she
oversaw the fulfillment of many prescriptions written by Padron.
       After months of investigation, federal agents searched Padron’s clinic
pursuant to a warrant. Based on the evidence obtained, a federal grand jury
returned an indictment, charging Padron, Hudspeth, Austin, Bryant, Hollier,
and several other patient herders with conspiracy to distribute hydrocodone
outside the scope of professional practice and without a legitimate medical
purpose.

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.


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                                            II.
       Defendants first argue insufficiency of evidence. All defendants timely
moved for a judgment of acquittal during trial. Our review is de novo, viewing
the evidence in the light most favorable to the Government, asking whether
any rational jury could have found all of the essential elements of the offense
beyond a reasonable doubt. 1 In this review, we accept all credibility choices
and reasonable inferences tending to support the verdict and resolve any
evidentiary conflict in favor of the verdict. 2
       The essential elements of conspiracy to distribute hydrocodone are “(1)
an agreement by two or more persons to violate the narcotics law; (2) a
defendant’s knowledge of the agreement; and (3) his voluntary participation in
the agreement.” 3
       With respect to Hudspeth, the evidence indicates that he played a
leadership role in the conspiracy. Padron testified that it was Hudspeth who
first pitched the idea of the scheme. Indeed, Padron and Hudspeth formed the
initial agreement at the root of the conspiracy. Padron also recounted that
Hudspeth would bring ten to twenty patients a day to the clinic seeking
prescriptions for controlled substances. Documentary evidence – clinic ledgers
and videotape – corroborated Padron’s testimony. Other patient herders
testified that Hudspeth was a leader in the conspiracy. Hudspeth not only
stood outside of the clinic on one occasion controlling admission, he also warned
other members of the conspiracy after the arrest of some participants that
“snitches be dealt with, so don’t say nothing.” A reasonable jury could have



       1United States v. Davis, 735 F.3d 194, 198 (5th Cir. 2013).
       2See generally United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014) (en banc)
(abandoning use of the “equipoise rule” in evaluations of the sufficiency of the evidence).
      3 United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc) (citing

United States v. Misher, 99 F.3d 664, 677 (5th Cir. 1996)).


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inferred knowledge of and intent to further the conspiracy’s unlawful purpose
from this evidence.
       The evidence concerning Joesephis Austin’s participation is also
sufficient to affirm his conviction. Unlike Hudspeth, Austin’s name does not
frequently appear in the clinic appointment book, nor is it among the contacts
in the cell phone the clinic used to communicate with herders. But the
government put forth evidence at trial to explain the absence: Dr. Padron
testified that Austin often accompanied Hudspeth to the clinic, joining him on
his scheduled visits without a documented appointment of his own. A January
5th search by law enforcement at the clinic found Hudspeth and Austin at the
clinic with a number of patients. Further, Austin’s name did appear on a list
of names and numbers maintained by the pharmacy that Dr. Padron later
identified as a catalog of patient herders. Another patient herder identified
Austin as a participant in the scheme, and Padron’s front desk employee
identified him as a regular at the clinic, coming in every 30 days with four to
five patients. Austin also appeared regularly on surveillance video from the
clinic. 4
       In arguing that there was insufficient evidence for his conviction, Austin
noted that Dr. Padron did not incriminate Austin when Padron first met with
investigators, naming Austin a coconspirator only after speaking to his lawyer.
Austin’s lawyer cross-examined Padron about the circumstances surrounding
his identification of Austin as a herder in the presence of the jury. The jury


       4  Austin points to some inconsistencies in how he was identified in the footage. At
different points during the investigation and trial, a government agent described a jacket
with a Pepsi logo that Austin was wearing as being navy blue; other times, the agent said it
was black. In some surveillance footage, Austin can be seen without a beard, although at trial
the same government agent testified that Austin had a short grey beard. A reasonable trier
of fact could infer that Austin’s facial hair had changed during the course of the investigation,
and that the agent was referring to the same jacket – which was later found at in the
apartment where authorities arrested Austin – throughout the trial.


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could have reasonably found Austin guilty of each of the elements of the
conspiracy on the basis of the evidence presented.
       The evidence is also sufficient to support Patricia Bryant’s conviction.
The government put forth evidence that Bryant was one of several persons who
regularly brought in groups of patients to the clinic, sometimes with her son
Allen Burkins, who pled guilty to charges stemming from the conspiracy and
whose appeal was dismissed as frivolous by this court. 5
       Bryant argues that she was merely acting as a caregiver to the patients
that she brought to Padron’s clinic. But the government offered a different
narrative, which a reasonable jury could have accepted. Padron testified that
Bryant received benefits for bringing in patients, including free visits to the
clinic for herself, that Bryant paid him cash for delivering the prescriptions to
the patients, and negotiated a lower rate when Bryant had some financial
difficulties. At trial, the government introduced videos that showed Bryant
visiting the clinic and the Urban Independent Pharmacy. The footage depicts
Bryant obtaining a prescription in the name of an individual who was not
present, receiving cash from at least one other individual, and making several
trips back and forth between the clinic and the pharmacy with different groups
of people in different vehicles. A reasonable jury could thus infer that Bryant
knowingly and voluntarily participated in the conspiracy.
       Finally, the evidence is sufficient to support the conviction of Lisa
Hollier, pharmacist and part-owner at Urban Independent Pharmacy (UIP).
Hollier contends that she never formed an agreement with Padron. She points
out that Padron even testified to that effect. But the attorneys strenuously
argued this point to the jury in closing, 6 and the jury was entitled to credit the


       5United States v. Burkins, 618 F. App’x 423 (5th. Cir. 2015).
       6Additionally, it is undisputed that the jury was properly charged, receiving a “mere
presence” instruction as well as an instruction that they should take “great care” assessing


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government’s evidence suggesting that the two had come to an informal
understanding. The government relied on a call that Hollier placed to Padron
to set up a meeting to discuss streamlining the prescription process between
the clinic and pharmacy. As a result of that meeting, patients no longer
brought their own prescriptions to the pharmacy; instead, Hollier created a
form that Padron would fax directly to the pharmacy. The form only covered
promethazine, hydrocodone, and Xanax prescriptions.
       The government called expert witnesses who explained that UIP
exhibited all the signs of a “pill mill” under Hollier’s watch. Some of those red
flags include multiple people arriving together to fulfill prescriptions, groups
with the same address filling prescriptions from the same provider, and
prescriptions for the highest strength paid for primarily in cash. According to
testimony from Mardesy Henderson, a patient herder, no one at UIP ever
questioned the validity of the prescriptions when they were being filled for the
same medicine, from the same doctor, at the same time, even when the patients
all shared the same address – a local homeless shelter. Henderson testified
that he only observed someone having difficulty obtaining a prescription when
he wanted to pay with Medicaid, as opposed to cash.
       The government argued that Hollier had reason to know that the
prescriptions were illegitimate, and that her compliance with the system
demonstrated her tacit consent with the scheme. On the faxed prescription
forms that Hollier recommended to Padron, Padron routinely cited the same
diagnosis – back pain or anxiety – without further detail. Over time, other
pharmacies like CVS and Walgreens stopped accepting prescriptions from
Padron’s office. When UIP ran out of a certain strength of hydrocodone, usually



accomplice testimony and an instruction that Hollier’s conspiracy conviction could not rest
on violations of the Texas pharmaceutical regulations.


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at the end of the month, Hollier would call Padron’s clinic to tell them to
prescribe a different strength.
       This evidence is sufficient to uphold Hollier’s conviction. Even though
Padron denied that they had an agreement, a rational trier of fact could infer
that Hollier knowingly participated in the scheme by meeting with Padron to
streamline the process of filling prescriptions and by then processing group
prescriptions as described by the herders, such as Henderson, and the
government’s        expert     witnesses.      As     other    pharmacies        realized,     the
prescriptions from Padron’s office were illegitimate, “further supporting the
jury’s conclusion that Hollier’s continued involvement reflected her knowledge
and intent to contribute to the scheme.
                                               III.
        Hudspeth also challenges his 72-month sentence on the ground that
that the district court erred in upwardly departing from the guideline range of
46-57 months pursuant to U.S.S.G. § 4A1.3(a)(4)(A). Because Hudspeth did not
dispute the procedural reasonableness of his sentence in the district court,
appellate review of that issue is for plain error. 7
        “When making factual findings for sentencing purposes, district courts
‘may consider any information which bears sufficient indicia of reliability to
support its probable accuracy.’” 8 In this circuit, courts may consider information
contained in a Pre-Sentence Report (PSR), because it “bears sufficient indicia


       7  See United States v. Bottoms, 602 F. App’x 1019, 1020 (5th Cir. 2015) (unpublished)
(holding that plain error review was appropriate for complaint about upward departure
under USSG § 4A1.3). To prevail under this standard of review, Hudspeth is required to show
“(1) an error, (2) that is clear or obvious, and (3) that affected [his] substantial rights.” United
States v. Phipps, 595 F.3d 243, 248 (5th Cir. 2010). If he satisfies those elements, this court
has discretion to remedy the error if the error “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Salinas, 480 F.3d 750, 756 (5th
Cir. 2007).
        8 United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (quoting United States v.

Solis, 299 F.3d 420, 455 (5th Cir. 2002)).


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of reliability to be considered as evidence by the sentencing judge in making
factual determinations.” 9 A defendant may, of course, rebut the information in
the PSR, but if he does not, the court is “free to adopt the PSR’s findings.” 10
           In this case, Hudspeth’s PSR noted that his criminal history category
“substantially under-represent[ed] the seriousness of [his] criminal history or
the likelihood he will commit other crimes.” Many of Hudspeth’s convictions did
not produce criminal history points for reasons unrelated to their seriousness. 11
The PSR described Hudspeth’s actual criminal history using information
retrieved through the National Crime Information Center and Texas Crime
Information Center. Hudspeth presented no evidence that the information was
inaccurate, and he concedes that he has 14 previous felony convictions and 14
misdemeanor convictions. In order to more accurately reflect his extensive
criminal history, the district court modified his criminal history category from
I to IV. Since Hudspeth’s prior convictions were substantiated by the PSR –
and unchallenged by the defense – the district court did not err in taking them
into consideration for sentencing.
       Nor did the district court commit a procedural error under
USSG § 4A1.3. The rule allows upward departure “[i]f reliable information
indicates that the defendant’s criminal history category substantially under-
represents the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes.” 12 To determine the extent of the
departure, a court must use “as a reference, the criminal history category
applicable to defendants whose criminal history or likelihood to recidivate most

       9 United States v. Nava, 624 F.3d 226, 231 (5th Cir. 2010) (quoting United States v.
Trujillo, 502 F.3d 353, 357 (5th Cir. 2007)).
       10 United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010).
       11 For instance, the Texas Department of Criminal Justice was unable to produce

records of Hudspeth’s date of release from state custody for several of his offenses, which
meant that they could not be used to calculate his criminal history points.
       12 USSG § 4A1.3(a)(1).




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closely resembles that of the defendant’s.” 13 Here, the court considered exactly
that: Hudspeth’s criminal history, as evidenced by the uncontested PSR. It
considered this history in light of its experience “on the bench,” and its
“educated view,” suggesting that the court was comparing Hudspeth to
similarly situated defendants that had appeared before the court in the past.
      Since the district court relied on uncontested information from the PSR
and complied with USSG § 4A1.3(a), it did not err in departing upward. We
therefore need not address the other prongs of plain error review.
      AFFIRMED.




      13   USSG § 4A1.3(a)(4)(A).


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