                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0124n.06

                                            No. 10-1456                                      FILED

                           UNITED STATES COURT OF APPEALS                               Feb 02, 2012
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,

         Plaintiff-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
FREDERICK ARNOLD HOGAN, D.O.,                          WESTERN DISTRICT OF MICHIGAN

         Defendant-Appellant.

                                                /




BEFORE:         MERRITT, BOGGS, and CLAY, Circuit Judges.

         CLAY, Circuit Judge. Defendant Frederick Arnold Hogan, D.O., appeals the judgment in

his criminal case after he pled guilty to distributing Oxycontin in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(C). Defendant argues that the district court committed numerous reversible errors relating

to his conviction and sentence.

         For the reasons that follow, we AFFIRM the conviction and sentence imposed by the district

court.

                                         BACKGROUND

         In 2003, the Michigan State Police Southwest Enforcement Team (“SWET”) investigated

Defendant Dr. Frederick Hogan’s (“Dr. Hogan”) Non-Invasive Pain Management Clinic (“clinic”)

in Lansing, Michigan for prescription drug abuse. The investigation revealed that Daniel Shepherd
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and members of his family obtained and distributed a variety of prescription drugs, including

Oxycontin, that were prescribed by Dr. Hogan.

       From the end of 2004 through early 2006, SWET operated an undercover investigation

purchasing Oxycontin from the Shepherd family and Dr. Hogan. On January 12, 2006, Al Gordon

(“Gordon”), a SWET undercover officer, visited Dr. Hogan’s clinic wearing a hidden recording

device and video camera. Gordon recorded Dr. Hogan writing a prescription for 60 Oxycontin

tablets without conducting an examination or inquiring about Gordon’s medical history. The

following recorded exchange took place between Dr. Hogan and Gordon:

       Dr. Hogan: Writing this prescription today is kind of against what we normally do
       because we like to see some evidence, but since you don’t have any, if we can get us
       an X-ray, that would be great.

       Gordon: Okay.

       Dr. Hogan: Because even if you don’t have any real trouble with your back, at least
       we have something on file that says he’s got back pain, he’s got an X-ray. Okay?

       Gordon: Just check the boxes? We all good with that, we can do that.

       Dr. Hogan: Alrighty, there you go.

(PSR ¶ 19.) Later that day, Gordon also purchased Oxycontin from Matthew Shepherd, who

obtained the pills from a prescription written by Dr. Hogan. SWET’s investigation found that Dr.

Hogan regularly prescribed Oxycontin without reviewing a patient’s medical history or conducting

an examination.

       On April 6, 2006, DEA and SWET executed a search warrant for the multiple residences of

the Shepherd family and also Dr. Hogan’s pain clinic. On August 6, the district court filed a 102-

count Superseding Indictment charging Dr. Hogan for the distribution of Oxycontin in violation of

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21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The Superseding Indictment alleged that Dr. Hogan regularly

prescribed Oxycontin to his patients on the basis of minimal patient evaluations.

       On October 12, 2009, Dr. Hogan filed a motion to dismiss the Superseding Indictment

arguing that the “usual course of professional practice” standard incorporated in the underlying

statute was unconstitutionally vague as applied to him. The district court denied Dr. Hogan’s motion

stating that Defendant “has not cited any federal case that has found the ‘outside the course of

professional practice’ standard [] unconstitutionally vague either on its face or as applied.” (R.45:

Dist. Ct. Op. 5.)

       On December 10, Dr. Hogan entered a guilty plea to Count 1 of the Superseding Indictment.

In exchange for Dr. Hogan’s guilty plea, the government agreed to dismiss Counts 2 through 102 of

the Superseding Indictment and agreed that it would not prosecute Dr. Hogan further for any conduct

arising out of the writing of prescriptions for controlled substances, with the exception of criminal

tax violations. According to the terms of the plea agreement, Dr. Hogan stipulated that the drug

quantity attributable to him pursuant to U.S.S.G. §§ 1B1.3 and 2D1.1(5) would not exceed 999

kilograms of marijuana equivalent. He also reserved the right to challenge the drug quantity

calculation at sentencing.

       A presentence investigation report (“PSR”) was prepared and submitted to the district court.

The PSR included information recovered from the SWET investigation and patient medical records

obtained from the search of Dr. Hogan’s clinic. In addition, the PSR included witness statements

from Dr. Hogan’s office manager and six patients. The government interviewed witnesses who had

personal knowledge of Dr. Hogan’s medical practices and also regularly purchased Oxycontin from


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his clinic. These individuals included Vickie Jones a/k/a Vickie Shepherd, Kathy Shepherd,

Matthew Shepherd, Tracy Shepherd, a/k/a Tracey Paglia, and Durae McQueen. The witnesses

recalled several instances where Dr. Hogan prescribed Oxycontin and other pain medications after

only conducting a brief patient interview that usually did not include a physical examination or a

review of the patient’s medical records. In addition, the witnesses observed that Dr. Hogan

neglected to ask whether the patients were abusing, selling, or injecting Oxycontin despite obvious

signs of drug abuse. One patient, Vickie Jones, stated that Dr. Hogan continued to prescribe

Oxycontin even when she was incarcerated.

       The government also interviewed Ann Tkaczyk (“Tkacyzk”), Dr. Hogan’s office manager,

who raised a number of concerns about the clinic’s procedures for writing prescriptions. She stated

that “after a period [of] time, Dr. Hogan no longer required new patients to first seek treatment from

a primary care physician.” (PSR ¶26.) According to Tkaczyk, even if patients arrived without

medical records or medication documentation, “Dr. Hogan would see them and prescribe OxyContin

or other controlled substances without any regard to the prior policy.” (Id.) Tkacyzk also noted that

the procedure for new patients changed over time to where she was no longer responsible for taking

a patient’s vital signs prior to an appointment with Dr. Hogan. Tkacyzk further stated that at some

point it became unclear whether Dr. Hogan would perform a physical examination on any his

patients. She was more concerned “when Dr. Hogan was not at the office [because] he would

instruct her to collect money from patients and give them prescriptions.” (Id. ¶ 29.) Tkaczyk stated

that she reported any patient that she suspected of abusing medication or “doctor shopping” through




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the online tool known as the Michigan Automated Prescription System (“MAPS”). But she believed

that Dr. Hogan ignored the MAPS reports.

        The government retained two experts to review the medical files. The experts concluded that

the prescriptions issued by Dr. Hogan were outside the usual course of his professional practice. The

experts found that Dr. Hogan’s evaluations were “cursory at best and often did not include even a

basic physical exam, a review of any diagnostics studies, or the production of any medical records

demonstrating a need for OxyContin.” (R.55: USA Sentencing Mem. 8.)

        Dr. Hogan also retained an expert, John Hopper, M.D. (“Dr. Hopper”) an addiction specialist,

to review the medical records of patients Kathy Shepherd, Matthew Shepherd, Tracy Shepherd, and

Durae McQueen. In making his evaluation, Dr. Hopper did not review the government’s patient

interview reports or Tkaczyk’s statements. Dr. Hopper concluded that Dr. Hogan was justified in

prescribing Oxycontin to his patients because “(1) each patient had a legitimate medical condition;

and (2) Dr. Hogan’s handling of these patients and prescriptions, though he did not strictly adhere

the ‘best practices’ set forth in ‘Responsible Opiod Prescribing’ by Scott Fishman, reflects a level

of competence that falls within the usual course of professional practice.” (PSR ¶ 53.)

        The PSR set forth a total offense level of 29 and a criminal history category I and

recommended a sentence of 87 to 108 months in prison. The government raised no objections to the

findings and recommendations in the PSR. Dr. Hogan’s counsel submitted objections to the court,

stating that the government over-estimated the number of Oxycontin tablets attributed to him. In

addition, Dr. Hogan argued, that if the court granted his objection to the drug quantity, his total base

offense level should be lowered to a guideline range of 57 to 71 months imprisonment.


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       A presentence interview was conducted on January 27, 2010, with Dr. Hogan and his

attorney, Gary K. Springstead. At the interview, Dr. Hogan admitted to the conduct in Count I of

the Superseding Indictment and also admitted his participation in issuing prescriptions and falsifying

medical files for Vickie Jones a/k/a Vickie Shephard.

       Prior to sentencing, Dr. Hogan filed a motion for downward variance and a sentencing

memorandum objecting to the PSR’s drug quantity determination. The government also filed a

sentencing memorandum in support of the PSR’s sentencing recommendation.

       At the sentencing hearing, the district court heard testimony from Dr. Hogan’s expert witness,

Dr. Hopper, and also considered Defendant’s objections to the PSR. The district judge then

discussed the evidence presented before the court and also reviewed the relevant § 3553(a) factors.

At the conclusion of the hearing, the district judge sentenced Dr. Hogan to 60 months of

imprisonment, three years of supervised release, and also imposed a fine of $10,000 and special

assessment fee of $100. Dr. Hogan timely appealed.

                                          DISCUSSION

I.     Dr. Hogan’s Sentence

       In this appeal, Dr. Hogan challenges his sentence and claims that (1) the district court failed

to make a finding of fact for the drug quantity calculation; and (2) the district court abused its

discretion in administering a procedurally and substantively unreasonable sentence.

               A.      Drug Quantity Calculation

       We review a sentencing court’s determination of drug quantity for clear error. United States

v. Olsen, 537 F.3d 660, 663 (6th Cir. 2008). While the quantity of drugs must be supported by a


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preponderance of the evidence, “the district court may rely on any competent evidence in the record;

however, the district court's findings must have some ‘minimum indicium of reliability beyond mere

allegation.’” United States v. Hough, 276 F.3d 884, 891 (6th Cir. 2002) (citing United States v.

Ward, 68 F.3d 146, 149 (6th Cir. 1995) (internal citation omitted)).

       The PSR determined that Dr. Hogan prescribed 127, 200 oxycodone tablets to six patients,

which approximately equaled 852 kilograms of marijuana under U.S.S.G. § 2D1.1(c)(5). The district

court adopted the calculations in the PSR. Dr. Hogan argues that the government failed to sustain

its burden of proof for the drug quantity determination and that the district court committed clear

error in adopting the drug quantity calculation in the PSR.

       The district court did not clearly err in determining the amount of drugs attributable to Dr.

Hogan. The “calculation of drug quantities is an individual, fact-specific exercise that requires

individual, fact-specific briefing.” Hough, 276 F.3d at 891. Here, the district court considered a

variety of evidence in making its determination, including the testimony of Dr. Hopper at sentencing,

the PSR, and the sentencing memoranda prepared by the parties. At sentencing, the district court

thoroughly explained its process of review. The district court reviewed the government’s interview

report of Tkacyzk, which questioned Dr. Hogan’s judgment in writing prescriptions for his patients.

In addition, the district court reviewed the medical records of the six patients, which corroborated

the interview reports provided in the PSR. This information proved that the treatment prescribed

to each patient did not reflect the general medical professional standards as basic physical exams

were not routinely performed and Dr. Hogan issued prescriptions only on minimal information given

by the patient. The information also showed that Dr. Hogan failed to reevaluate his patients or


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update their treatment plans and often ignored signs of prescription-drug abuse that were indicated

in the MAPS reports.

          We further note that the district court properly followed all of the sentencing procedures by

affording the parties an opportunity to comment on the PSR. The court heard testimony from

Defendant’s expert witness, Dr. Hopper, who testified that Dr. Hogan’s conduct was within the

normal and customary professional practice of medical doctors. The government made the witnesses

who provided testimony in the PSR available for examination by the defense; however, Defendant

elected not to confront those witnesses at the hearing. At the conclusion of the hearing, Defendant

simply preserved an objection to the drug quantity based in part on the right to confront his accusers.

          Based on a review of the sentencing hearing transcript, we hold that the district court

thoroughly reviewed the evidence in the record to support the drug quantity calculation. “A district

court’s approximation of drug quantity is not clearly erroneous if it is supported by competent

evidence in the record.” United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008). We hold that

the drug quantity calculation indicated in the PSR was not only below the amount stated in his plea

agreement but also appropriate given the severity of his offense. The overwhelming evidence

presented by the government showed that Dr. Hogan frequently prescribed Oxycontin to patients

using forms that were pre-written or only filled out by the nurse. In addition, Dr. Hogan falsified

documents and medical records to conceal the fraudulent prescriptions. We agree with the district

court’s conclusion that Dr. Hogan failed to meet the usual professional practice of medical doctors

in writing his prescriptions. Therefore, the drug quantity calculation attributable to Dr. Hogan was

proper.


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                B.      Procedural and Substantive Reasonableness of Dr. Hogan’s Sentence

        We review challenges to the district court’s sentencing determinations for reasonableness

under an abuse of discretion standard. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007).

When reviewing a sentence for abuse of discretion, we must determine whether the sentence is

procedurally and substantively reasonable. Gall v. United States, 552 U.S. 38, 41 (2007).

                        1.      Procedural Reasonableness

        In reviewing for procedural reasonableness, “a district court necessarily abuses its sentencing

discretion if it ‘commit[s] [a] significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain

the chosen sentence—including an explanation for any deviation from the Guidelines range.’”

Bolds, 511 F.3d at 579 (citing Gall, 552 U.S. at 51). A sentence is procedurally reasonable if the

record contains “the district court’s rationale for concluding that the sentence imposed is sufficient

but not greater than necessary, to comply with the purposes of sentencing set forth in 18 U.S.C. §

3553(a).” Id. at 580.

        We hold that the district court properly determined Dr. Hogan’s sentence. At sentencing, the

district court acknowledged its duty “to impose a sufficient sentence, but one that is not greater than

necessary to comply with the federal sentencing statute, 18 United States Code § 3553(a) factors.”

(R.67: Sentencing Hr’g Tr. 64.) The court deliberated on how to fashion the appropriate sentence

that balanced Dr. Hogan’s generally good character with his past criminal convictions. At

sentencing, the district court stated:


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       There appears to be two individuals. There’s one individual who does not live a
       lavish lifestyle, apparently, who has lots of friends. . . is much loved and respected
       by lots of people and who holds himself out not only as professional and well-
       educated, but as being moral and thoroughly honest.

       And then I peel back the history a little bit and I see here that as early as 1997 in
       Detroit a misdemeanor marijuana conviction of possession. And then I move up to
       an incident in 1999 giving rise to a conviction in June of ‘01, the government has just
       made allusion to it.

       . . . And we’re back here in another district court nine years later. That’s really a
       concern to the court. I don’t know quite what to do with that. Your history and
       characteristics would seem to indicate that you worked hard to get where you are. .
       . But I’m bothered by what I see here on these past convictions and what I read here
       in this case.

(Id. 64–65.)

       Based on the record, we find that the district court carefully reviewed the arguments

presented in Defendant’s sentencing memorandum and rejected or accepted those arguments as it

deemed appropriate. The court granted Dr. Hogan’s motion for a downward variance, recognizing

that the PSR’s recommended sentence would not be appropriate given the personal characteristics

of the Defendant. The court favorably acknowledged Dr. Hogan’s effort to serve families with

medical needs that are generally underserved by the medical profession. But as the court also

observed, “doctor shopping” was prevalent, particularly in this community “where patients

commonly lie” and that this is a “challenge in the medical arena.” (Id. 49.) In view of the foregoing,

we do not find any evidence that the district court abused its discretion. That the court did not weigh

the factors raised by Defendant in the manner that he would have liked to have had them weighed

does not indicate that the court acted improperly or disregarded Defendant’s arguments.




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        Dr. Hogan argues that the district court abused its discretion by applying the Sentencing

Guidelines as if they were mandatory. We disagree. We review Dr. Hogan’s objection to the

sentencing guidelines for plain error, since it was not raised below. United States v. Vonner, 516

F.3d 382, 385–86 (6th Cir. 2008) (en banc). Although the district court did not expressly describe

the Guidelines as advisory, there is no indication from the record that the district court failed to treat

them as such. The district court is “not bound to apply the Guidelines, [but] must consult those

Guidelines and take them into account when sentencing.” United States v. Booker, 543 U.S. 220,

264 (2005). The district court justified Dr. Hogan’s sentence by explaining its reasoning for

imposing the sentence after weighing a number of considerations, including the seriousness of the

offense and its particularly strong effect on the community. (R.67: Sentencing Hr’g Tr. 66.) Despite

these observations, the court granted Dr. Hogan’s motion for a downward variance for his

conviction, which suggests that the court recognized that a less severe sentence was warranted.

                        2.      Substantive Reasonableness

        Dr. Hogan also challenges the substantive reasonableness of his sentence. He claims that the

district court was overly influenced by the fact that some of his patients were convicted of

distributing prescription drugs and that he was previously convicted of a federal offense related to

his medical practice.

        A sentence is substantively reasonable if it is “proportionate to the seriousness of the

circumstances of the offense and offender, and sufficient but not greater than necessary, to comply

with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (internal

citation and quotation marks omitted). A sentence is “substantively unreasonable where the district


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court ‘selects the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to

consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent

factor.’” United States v. Moon, 513 F.3d 527, 543 (6th Cir. 2008) (citing United States v.

Collington, 461 F.3d 805, 808 (6th Cir. 2006)).

       There is sufficient evidence in the record to conclude that the district court imposed a

substantively reasonable sentence. The district court appropriately considered Dr. Hogan’s prior

federal conviction for the falsification of medical records as well as his patient’s medical history of

substance abuse, while balancing Defendant’s personal history and characteristics. The district court

also considered the § 3553(a) factors that led it to believe that the sentence it imposed was

appropriate. Based on the totality of the evidence in the record, we hold that the district court “did

not select [Dr. Hogan’s] sentence arbitrarily, base it on impermissible factors, or give unreasonable

weight to any pertinent § 3553(a) factor in deriving it.” United States v. Warman, 578 F.3d 320, 351

(6th Cir. 2009). Therefore, Defendant’s sentence is substantively reasonable.

II.    Failure to Grant a Downward Departure

       Dr. Hogan also requested a downward departure in the length of his sentence because he

claimed that the Sentencing Guidelines for his drug offense was too severe.

       We review de novo the issue of whether the district court was aware of its authority to depart

downward. United States v. Clark, 385 F.3d 609, 623 (6th Cir. 2004). “The Court presumes that

the district court understood its discretion to depart, ‘absent clear evidence in the record to the

contrary.’” Id. (citing United States v. Crouch, 288 F.3d 907, 910 (6th Cir. 2002)). However,

“[w]here a defendant raises a particular argument in seeking a lower sentence, the record must reflect


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both that the district judge considered the defendant's argument and that the judge explained the basis

for rejecting it.” United States v. Recla, 560 F.3d 539, 547 (6th Cir. 2000) (citing United States v.

Richardson, 437 F.3d 550, 554 (6th Cir. 2006)). A district judge “must adequately explain the

chosen sentence to allow for meaningful appellate review and to promote the perception of fair

sentencing.” Gall, 552 U.S. at 50.

       The district court adequately explained its reasoning and properly exercised its discretion in

addressing Dr. Hogan’s motion for downward variance by reducing his sentence from the

recommended 87–107 months of imprisonment to 60 months. At sentencing, the district court stated

that it was going to give some kind a downward of variance to the sentence because the PSR’s

recommendation for a higher sentence was too severe. The district court said:

       This oxycodone statute is aimed at traffickers, there’s no question about it. . . And
       that wasn’t your purpose. . . So it seems to this Court that a sentence has to be
       ameliorated to an extent for that. This is a very serious offense. It’s one in which the
       community is very concerned.

(R. 67: Sentencing Hr’g Tr. 66.)

       This particular statement clearly demonstrates that the district court understood its discretion

to depart downward. Therefore, we reject Defendant’s claim that the court failed to consider its

motion for a downward departure. We further note that Dr. Hogan’s sentence of 60 months falls

within the range he requested of 57 to 71 months imprisonment. The sentencing transcript clearly

shows that the district court was not only aware of its authority to grant a downward departure, but

in fact exercised that authority by holding that the PSR recommended a harsher punishment than was

necessary for his offense.




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                                      CONCLUSION

        For the reasons discussed above, we AFFIRM the conviction and sentence imposed by

the district court.




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