                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0587n.06

                                       Case No. 13-5817

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
 UNITED STATES of AMERICA,                          )                          Aug 04, 2014
                                                    )                      DEBORAH S. HUNT, Clerk
         Plaintiff-Appellee,                        )
                                                    )      ON APPEAL FROM THE
                v.                                  )      UNITED STATES DISTRICT
                                                    )      COURT FOR THE EASTERN
 CLARA RODRIGUEZ-IZNAGA, M.D.                       )      DISTRICT OF KENTUCKY
                                                    )
       Defendant-Appellant.                         )
 _______________________________________            )

Before: BATCHELDER, Chief Judge; KEITH and STRANCH, Circuit Judges.

        ALICE M. BATCHELDER, Chief Judge.                 Clara Rodriguez-Iznaga appeals the

sentence imposed following her conviction for conspiracy to unlawfully dispense Schedule II

controlled substances and conspiracy to commit money laundering. We affirm.

                                               I.

        At the time of these events, circa 2008-2009, Dr. Clara Rodriguez was 57 years old and

facing a possible revocation of her physician’s license due to a prior incident unrelated to this

case.   In June 2008, she partnered with an Ohio man named Jody Robinson to open a “pain

management” clinic in Plantation, Florida, which they named Florida Global Medical (“FGM”).

Robinson was not a doctor.

        The FGM facility had a waiting area, a reception desk, and three business-style offices,

each with a desk, chairs, etc., but no facilities for examining patients. Later, Rodriguez and

Robinson added a “dispensary” to fill the prescriptions written by Dr. Rodriguez.   A third-party

company operated the dispensary, which was basically a pharmacy without a pharmacist that
United States v. Rodriguez
No. 13-5817


only carried the particular pills that Dr. Rodriguez would order.              Upon arriving at FGM

(walk-in only, no appointments), the “patient” would pay for an office visit ($200, cash only, no

insurance accepted) and wait to see Dr. Rodriguez at her desk in her office to tell her about his or

her pain.       Dr. Rodriguez required each patient to provide an MRI, and if the patient could not,

Dr. Rodriguez would send the patient next door to Plantation MRI to get one.              At Plantation

MRI, the patient again had to pay cash, but through an agreement (and profit split) between

Plantation and FGM, the patient would go straight in to have the MRI taken, without waiting in

line.

          Dr. Rodriguez would then prescribe for the patient a 30-day supply of pain medication:

about 400 pills in some combination of 30-mg oxycodone, 15-mg oxycodone, and 200-mg

Xanax.        Initially, the patient had to take the prescriptions to a pharmacy to have them filled, but

once the on-site dispensary was in place, the patient could fill the prescriptions right there (again

paying cash, no insurance, and with a percent of the payment going to Dr. Rodriguez).                Dr.

Rodriguez and Jody Robinson operated FGM from June 2008 to June 2009 when Dr. Rodriguez

quit. During that time they grossed almost $2 million.           Dr. Rodriguez netted about $650,000

and Robinson about $600,000, though he apparently gambled it all away as fast as he could make

it.

          Meanwhile, a joint task-force of police from southern Ohio, eastern Kentucky, and West

Virginia, investigating the influx into their areas of pharmaceutical oxycodone pills, found FGM.

They found that every 30 days drug traffickers would drive to FGM, get pills, drive home, and

sell them.        Because that drive is 15 to 18 hours each way, enterprising traffickers would



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No. 13-5817


“sponsor” drug addicts to make the trip as well. The sponsor would drive the addicts to FGM,

pay for the office visit and pills, and drive them back to Ohio, Kentucky, or West Virginia. The

addict would keep half of the pills and the sponsor would keep the other half to sell.

          When police executed a search warrant at FGM, they seized 859 patient files and found

that 612 of those patients (71%) were from Ohio, Kentucky, or West Virginia, and had made

numerous trips to FGM.        The prescriptions filled in the on-site dispensary revealed that

272 Kentucky patients made 966 trips; 255 Ohio patients made 917 trips; and 30 West Virginia

patients made 96 trips, for a total of 557 patients making 1,979 trips to FGM and getting about

400 pills each trip.

          The police arrested some sponsors and then pursued FGM.      Dr. Rodriguez was indicted

on one count of conspiracy to distribute Schedule II controlled substances, in violation of

21 U.S.C. §§ 846 and 841(b)(1)(C), and one count of conspiracy to commit money laundering, in

violation of 18 U.S.C. § 1956(h).   Robinson agreed to testify against Dr. Rodriguez in exchange

for a reduced charge of money laundering, with a four-year prison term.             Dr. Rodriguez

maintained her innocence and went to trial, insisting that she was ignorant of any wrong-doing,

having simply prescribed pain medication to people claiming to be in pain.        After six days of

trial, the jury convicted her on both counts.        And although the evidence of her guilt was

overwhelming, even after conviction she continues to insist on her innocence.

          During trial, the government had introduced evidence from government records that,

during operation of the on-site dispensary, Dr. Rodriguez had ordered some 693,000 oxycodone

pills.    The Presentence Investigation Report (“PSR”) was more specific, reporting that from



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No. 13-5817


August 14, 2008, through September 1, 2009, she had dispensed 16,318.0931 grams of schedule

II narcotics, which equaled 109,331 kg of marijuana equivalent.        See U.S.S.G. § 2D1.1 App.

Note 8.(D) (1 gm oxycodone = 6.7 kg marijuana equivalent). The base offense level was 38 for

any amount of marijuana equivalent above 30,000 kg. U.S.S.G. § 2D1.1(c)(1).

          The question at sentencing was how much of the 109,331 kilograms of marijuana

equivalent was relevant criminal conduct for her sentencing in Ohio.       Dr. Rodriguez’s attorney

argued that the court should count only the portion that was sold to Ohio, Kentucky, and West

Virginia (“OH-KY-WV”) residents for an improper purpose (e.g., trafficking). The sentencing

hearing was muddled and somewhat confusing, first because defense counsel was mistaken

about the number of patient files from other locales and then, after that had been resolved (and

that argument conceded), because counsel continued to insist that Dr. Rodriguez had prescribed

pills only for proper pain management purposes; ultimately his theory was that none of the drugs

should count towards her sentence.      But, as the district court reminded him, the jury had already

convicted her of prescribing for improper purposes.     Eventually, the district court pointed out:

          There’s an inference there, and I’m sure the jury latched on to the inference, that
          someone with back pain or some other pain is not going to sit in a car for 15 hours
          and endure more pain to get pills, oxycodone, from a doctor in South Florida
          when they can go to their local pain clinic in Kentucky to get the pills.

The court then held:

          Th[is] Court does find by a preponderance of the evidence that individuals who
          would have traveled from Kentucky, West Virginia, [or] Ohio, it strains logic and
          reason that someone is going to travel 15 hours in a car to go to a pain clinic in
          Florida to treat their pain when they could go to a pain clinic down the street,
          across the road[,] or in Ohio, West Virginia[,] or Kentucky. I cannot conclude
          by a preponderance of the evidence that they would have gone down there for any
          other reason than to obtain pills to bring back to Kentucky to distribute.


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At no time did defense counsel offer an alternative explanation or any alternative method for

calculating or deciding the relevant drug quantity for sentencing. The government suggested

that because 71% of the patients were from OH-KY-WV, the court could use 71% of the total

amount that Dr. Rodriguez had prescribed (according to the PSR calculation), and noted that

even 50% of that total amount (54,666 kg) was well above the 30,000-kg threshold for setting the

base offense level at 38.

          The district court – without any real objection from either party – created its own method

of calculation (which turned out to be very favorable to Dr. Rodriguez).                   The court started from

the premise that each patient received 240 30-mg oxycodone pills and 90 15-mg oxycodone pills

each trip, which the court noted was under-representative because many patients had actually

received 120 15-mg oxycodone pills.                Next, the court equated that to 48 kg of marijuana

equivalent per trip per patient – which is wrong mathematically (it should have been 57 kg

each).1      Then the court referred to the fact that the OH-KY-WV patients made 1,980 trips to

FGM (actually 1,979 trips, but also recall that this number counted only the 557 of the 612 total

OH-KY-WV patients who filled their prescriptions at the in-house dispensary). The court

multiplied those numbers (48 kg marijuana per trip x 1,980 trips) to get 95,040 kg of marijuana

equivalent.        And even though this number was already based on only those OH-KY-WV

patients who filled the prescriptions in-house, the court further reduced that amount by 30%



1 (240 pills x 30 mg/pill) + (90 pills x 15 mg/pill) = 8,550 mg, or 8.55 gm oxycodone x 6.7 kg marijuana/gm
oxycodone = 57.285 kg marijuana equivalent per trip per patient. In order to arrive at the 48 kg of marijuana
equivalent, the district court apparently omitted all of the 15-mg pills (240 pills x 30 mg/pill = 7,200 mg, or 7.2 gm
oxycodone x 6.7 kg/gm = 48.24 kg marijuana equivalent). So the court under-counted by about nine kg per patient
per trip (in addition to the under-counting that it acknowledged with regard to the 90 versus 120 count of 15-mg
oxycodone pills).

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No. 13-5817


because only about 70% (actually 71%: 612 of 859) of the total patients were from OH-KY-WV.

This led to a final amount of 66,528 kg marijuana equivalent, which was still well above the

30,000 threshold.

          The court set the base offense level at 38 and added two levels for Dr. Rodriguez’s abuse

of a position of trust for a total offense level of 40. With a criminal history of I, the advisory

range was 292 to 365 months in prison.           But because the statutory maximum was 240 months,

the range was 240.           Defense counsel argued for a downward variance to 12 months and one day

with time-served and the rest deferred. The district court denied that variance, thoroughly

considered the sentencing factors, and sentenced Dr. Rodriguez to 240 months in prison.          She

appeals.

                                                     II.

          Dr. Rodriguez raises two issues on appeal. The first concerns the proper method a court

must use to decide the drug quantity as relevant conduct for sentencing. The second issue is a

challenge to the substantive reasonableness of her sentence. We find no merit to either.

                                                     A.

          The proper interpretation and application of the sentencing guidelines is a question of law

that we review de novo. United States v. Olsen, 537 F.3d 660, 663 (6th Cir. 2008). We review a

district court’s drug quantity determination for clear error. Id.

          In this appeal, Dr. Rodriguez persists in arguing that the prescriptions written to

OH-KY-WV residents were for legitimate medical reasons and, therefore, the court should not

have considered those drugs as relevant criminal conduct.          She claims that the court erred by



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“assuming” that all of those prescriptions were for improper purposes.           She contends that the

government was instead obligated to produce a medical expert to review each of the medical

files and provide an opinion as to how much of each prescription was for a legitimate medical

purpose; the defense could then cross-examine that expert and provide its own competing expert

as to the propriety of each prescription; and then the court could decide how much was

illegitimate without assuming, extrapolating, or estimating.

          The government points out that the law requires no such approach and, even if such an

approach were not needlessly cumbersome, it would be wholly impractical in this case because

the medical files on which Dr. Rodriguez would have the expert(s) opine are inherently

untrustworthy. Those files contain false entries that Dr. Rodriguez herself fabricated to justify

the issuance of the prescriptions.        More to the point, the jury already decided that the purpose

for the prescriptions was improper.

          Dr. Rodriguez relies on two Seventh Circuit opinions to support her argument that the

district court was forbidden from estimating or extrapolating, and was instead bound to analyze

each patient’s prescription individually to determine if it was for a legitimate medical purpose.

In United States v. Chube, 538 F.3d 693, 694 (7th Cir. 2008), the government had charged two

doctors (brothers David and Randy) with 33 counts each of conspiracy to distribute oxycodone,

but the jury convicted David of only six counts and Randy of only one. At sentencing, the

district court discussed 10 of the 98 patient files and declared all of the prescriptions unlawful.

Id. at 703-04.         On appeal, the Seventh Circuit found no explanation as to “why the prescriptions

in the 98 files were not merely unnecessary, but indicative of illegal drug pushing,” and



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concluded that “[t]he court’s assumption of a lack of legitimate medical purpose for every

prescription in 98 files after discussing only 10 files with any specificity was not enough to

support its findings.” Id. at 704.      The Seventh Circuit held that extrapolation was unnecessary:

          When the district court revisits relevant conduct on remand, it must explain its
          findings with respect to each patient and make a reasoned determination whether
          or not the Government has carried its burden of establishing that each prescription
          was dispensed outside the scope of medical practice and without a legitimate
          medical purpose.

Id. at 705-06. Obviously, this approach is more feasible for 98 total patients than for the

612 we have here.            But more importantly, here the district court did explain why the

prescriptions to the OH-KY-WV residents were not merely unnecessary but instead indicative of

drug trafficking, holding that no reasonable person in that much pain would travel 15-plus hours

to Florida (every 30 days) when he or she could get the same medication “down the street” or

“across the road.”

          In United States v. Rosenberg, 585 F.3d 355, 357 (7th Cir. 2009), the district court

considered four (4) patient files and found every prescription written to each patient to be

unlawful. The Seventh Circuit reiterated Chube:

          Chube requires the government to at least address every patient to whom a
          medical professional defendant has written an allegedly unlawful prescription. It
          is not necessary, however, for the government to systematically discuss every
          single prescription that every single patient received. That would be a
          duplicitous and meaningless procedural requirement. A district court may not,
          however, as it did in Chube, only discuss some of the patient files and extrapolate
          that, because some of the patients received prescriptions that had no legitimate
          medical purpose and were outside the usual course of medical practice, all of the
          prescriptions written to all of the patients had no legitimate medical purpose and
          were outside the usual course of medical practice.




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Id. at 357-58. Again, what is reasonable for four patient files is not necessarily so when there

are 612. And, here the district court did not merely extrapolate to the whole from the few – it

treated similarly all of the OH-KY-WV residents who would travel 15-plus hours to Florida

(every 30 days) when they could get the same medication “down the street” or “across the road.”

          The government argues that this case is more like United States v. Huffman, 529 F. App’x

426, 428-29 (6th Cir. 2013), in which we considered whether 1.5 million oxycodone pills

(distributed to numerous patients) was relevant conduct despite Huffman’s claim that she had

distributed some for legitimate reasons.     In its reasoning, the opinion does not state the number

of patients or files; rather we relied on our belief that so many pills in such a short time in a town

as tiny as Portsmouth, Ohio, sufficiently proved the illegality of all of the pills.   We held:

          A district court is allowed to estimate the quantity so long as the court can
          conclude that it is more likely than not that the defendant is actually responsible
          for an amount greater than or equal to the amount for which she is held legally
          responsible.

Id. at 430 (citing United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008)). While not

completely on point, this is certainly persuasive guidance on the law of this Circuit.

          Because our opinion in Huffman, albeit unpublished, provides for estimation or

approximation; because the Seventh Circuit cases are not compellingly on point; and because the

district court here did provide an explanation for its decision (not merely a rote extrapolation

from the few to the many or an unsupported estimation), we affirm the calculation of drug

quantity made by the district court.




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                                                  B.

          The second issue is a challenge to the substantive reasonableness of the sentence, which we

review for an abuse of discretion. United States v. Elmore, 743 F.3d 1068, 1072 (6th Cir. 2014).

Dr. Rodriguez raised this issue in her “statement of issues presented,” but did not argue it

separately in her brief or elaborate on this contention in any discernable way.

          The district court actually sentenced Dr. Rodriguez to a below-guidelines sentence of

240 months in prison, as that was the statutory maximum. When imposing sentence, the court

expressly considered the § 3553(a) factors and noted several things in its consideration: Dr.

Rodriguez’s operation at FGM was clearly a “sham”; she failed to recognize the seriousness of

the offense; she continued to blame everyone else and refused to take responsibility; she

displayed a callous attitude while testifying; and a sentence any lower would promote disrespect

for the law. We find no abuse of discretion here.

                                                 III.

          For the foregoing reasons, we AFFIRM the judgment of the district court.




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