US v. Linda Cheek

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:08-cr-00012-GEC-1 Copies to all parties and the district court/agency. [999478880].. [13-4838, 13-4841]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4838

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LINDA SUE CHEEK,
Defendant - Appellant.

No. 13-4841

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LINDA SUE CHEEK,
Defendant - Appellant.

Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.
Glen E. Conrad, Chief
District Judge. (7:08-cr-00012-GEC-1; 7:12-cr-00040-GEC-1)

Submitted:

September 30, 2014

Decided:

November 20, 2014

Before KEENAN, DIAZ, and THACKER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

Dana R. Cormier, DANA R. CORMIER, P.L.C., Staunton, Virginia,
for Appellant. Daniel Steven Goodman, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Jennie L.M. Waering, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In these consolidated appeals, Linda Sue Cheek appeals
her convictions of multiple counts of distribution of controlled
substances

using

a

Drug

Enforcement

Administration

(“DEA”)

registration number issued to another and using her own revoked
DEA registration number, in violation of 21 U.S.C. §§ 841, 843
(2012);

the

convictions;

twenty-seven-month
and

sentence

the twelve-month

imposed

sentence

for

imposed

these

following

revocation of her probation for a prior conviction.

On appeal,

defense

Anders

counsel

has

California,

386

meritorious

issues

filed

U.S.

738

for

a

brief

(1967),
appeal

pursuant

stating

but

that

questioning

to

there

are

whether

v.
no
the

district court (1) erred in denying Cheek’s motion for judgment
of acquittal because the Government failed to present adequate
evidence

of

her

intent,

(2)

erred

in

its

relevant

conduct

determinations, (3) improperly applied an upward enhancement for
leadership role under the Sentencing Guidelines, (4) improperly
imposed a Guidelines enhancement for obstruction of justice, and
(5)

imposed

a

procedurally

and

sentence for her new convictions. *

substantively

unreasonable

For the reasons that follow,

we affirm.

*

Cheek raises no specific
revocation or related sentence.

3

challenge

to

her

probation

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We review de novo the district court’s denial of a
Fed. R. Crim. P. 29 motion for judgment of acquittal.
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).

United
We will

affirm if, viewing the evidence in the light most favorable to
the

Government,

“the

conviction

is

supported

by

substantial

evidence.”

United States v. Hickman, 626 F.3d 756, 763-64 (4th

Cir.

(internal

2010)

quotation

marks

omitted).

“Substantial

evidence” is defined as such “evidence that a reasonable finder
of fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United

States

(internal

v.

Green,

quotation

evidentiary

599

marks

sufficiency

F.3d

360,

omitted).
“faces

a

A

367

(4th

defendant

heavy

Cir.

2010)

challenging

burden.”

United

States v. Foster, 507 F.3d 233, 244-45 (4th Cir. 2007).
Section
authorized

by

this

841(a)(1)

provides

subchapter,

it

shall

that,
be

“[e]xcept

unlawful

for

as
any

person knowingly or intentionally . . . to . . . distribute, or
dispense . . . a controlled substance.”

21 U.S.C. § 841(a)(1);

see United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005)
(identifying elements of distribution offense).

To dispense is

“to deliver a controlled substance to an ultimate user . . . by,
or pursuant to the lawful order of, a practitioner, including
the prescribing and administering of a controlled substance.”
21 U.S.C. § 802(10) (2012).

A practitioner is “a physician . .
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. or other person licensed, registered, or otherwise permitted,
by

the

United

States

or

the

jurisdiction

in

which

[s]he

practices . . . to distribute, [or] dispense . . . a controlled
substance in the course of professional practice.”

21 U.S.C.

§ 802(21) (2012).

Under this definition, Cheek did not qualify

as

at

a

practitioner

the

time

of

the

charged

offenses,

and

therefore her conduct in issuing controlled substances is not
protected by this statutory exception.

See United States v.

Blanton, 730 F.2d 1425, 1429-30 (11th Cir. 1984) (holding that
individuals who lack a valid DEA registration are not authorized
to dispense controlled substances).
Viewing the evidence in the light most favorable to
the Government, we conclude that the district court did not err
in denying Cheek’s Rule 29 motion.

As to Counts 1 through 10,

the Government established that Cheek wrote controlled substance
prescriptions under her own name and revoked DEA registration
number.
Cheek

As to Counts 11 through 91, the Government proved that

called

through

V

registration
practice.

into

pharmacies

controlled
number
While

prescriptions

substances

outside

Cheek

the

under
usual

contended

that

for

Schedule

III

another

doctor’s

DEA

course
her

of

professional

actions

were

the

result of accident or mistake, the evidence supports a finding
of intent.

See United States v. Martin, 523 F.3d 281, 289 (4th

5

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Cir.

2008)

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(finding

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circumstantial

evidence

sufficient

to

establish intent).
Cheek

next

raises

Guidelines calculations.
findings

for

clear

three

challenges

to

the

court’s

We review the district court’s factual

error

and

its

legal

conclusions

de

novo.

United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir.
2010).

The Government is required to prove a defendant’s drug

quantity

under

the

Guidelines

by

a

preponderance

of

the

evidence, United States v. Carter, 300 F.3d 415, 422 (4th Cir.
2002), but the defendant bears the burden to demonstrate that
the

information

inaccurate.

contained

in

the

PSR

is

unreliable

or

United States v. Kiulin, 360 F.3d 456, 461-62 (4th

Cir. 2004).
Cheek

first

determination.

In

challenges
the

the

context

court’s

of

a

relevant

controlled

conduct

substance

offense, relevant conduct is defined to include “all acts and
omissions

committed,

aided,

abetted,

counseled,

commanded,

induced, procured, or willfully caused by the defendant . . .
during the commission of the offense of conviction” as well as
those acts “that were in the same course of conduct or common
scheme

or

plan

as

the

offense

of

conviction.”

USSG

§ 1B1.3(a)(1)-(2); see USSG § 3D1.2(d) (providing for grouping
of counts under USSG § 2D1.1).

We conclude that the district

court did not clearly err in determining that Cheek’s unilateral
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alterations to patients’ Schedule II prescriptions constituted
part of the same course of conduct as the offenses of conviction
and in calculating the drug weight on this basis.

See Kiulin,

360 F.3d at 461 (recognizing that drug quantity calculation is
factual determination reviewed for clear error).
Cheek

next

appeals

the

court’s

application

of

a

sentencing enhancement for her managerial role in the offense.
The Guidelines provide for a two-level upward adjustment when
the

defendant

acted

as

“an

organizer,

leader,

manager,

or

supervisor” in criminal activity that did not involve five or
more

participants

3B1.1(c).

and

was

not

otherwise

extensive.

USSG

§

The defendant must have supervised “one or more other

participants,” that is, “a person who is criminally responsible
for the commission of the offense” but who was not necessarily
convicted.

USSG § 3B1.1 cmt. n.1, 2; see United States v.

Steffen, 741 F.3d 411, 414 (4th Cir. 2013) (recognizing that
enhancement

requires

that

defendant

organizer, or leader of people).

was

manager,

supervisor,

Based on Cheek’s relationship

with Dr. Kathleen Schultz, we conclude that the court did not
clearly err in imposing this enhancement.
Cheek also argues that the court improperly applied a
sentencing

enhancement

Guidelines

provide

defendant

willfully

for

for
a

obstruction
two-level

obstructed

or
7

of

justice.

enhancement

impeded,

or

when

The
“the

attempted

to

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obstruct or impede, the administration of justice with respect
to the . . . sentencing of the instant offense of conviction.”
USSG § 3C1.1.

Examples of covered conduct include “threatening,

intimidating,

or

witness,

.

.

.

otherwise
or

unlawfully

attempting

to

attempting to suborn perjury.

influencing

do

so,”

and

a

.

.

suborning

.
or

USSG § 3C1.1 cmt. n.4(A), (B).

In view of the testimony presented both at trial and in the
sentencing hearing, the district court did not clearly err in
imposing this enhancement.
Finally,

Cheek

twenty-seven-month
conducting

a

challenges

sentence

for

reasonableness

the

her

review,

abuse-of-discretion standard.”

reasonableness
new

we

of

convictions.

apply

“a

her
In

deferential

Gall v. United States, 552 U.S.

38, 41 (2007).

The court first “ensur[es] that the district

court

no

committed

improper

significant

calculation

of

the

procedural

Guidelines

error,”

range,

including

insufficient

consideration of the 18 U.S.C. § 3553(a) (2012) factors, and
inadequate explanation of the sentence imposed.

United States

v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010) (internal quotation
marks omitted).
Upon

finding

no

procedural

error,

we

examine

the

substantive reasonableness of the sentence under “the totality
of the circumstances.”

Gall, 552 U.S. at 51.

The sentence

imposed must be “sufficient, but not greater than necessary,” to
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satisfy the goals of sentencing.
below-Guidelines

sentence

is

See 18 U.S.C. § 3553(a).

presumed

reasonable

on

A

appeal.

United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).

The

defendant bears the burden to rebut the presumption by showing
“that the sentence is unreasonable when measured against the
§ 3553(a) factors.”

United States v. Montes-Pineda, 445 F.3d

375, 379 (4th Cir. 2006) (internal quotation marks omitted).
We discern no unreasonableness in Cheek’s sentence.
district

court

considered

its

properly

calculated

applicability

to

the

Guidelines

Cheek,

finding

range
the

The
and

range

inappropriate to the unique circumstances of her offense.

The

court conducted a thorough assessment of Cheek’s circumstances
and

sentencing

factors,

before

Guidelines

considerations,
imposing

range.

Cheek

a

grounded

sentence

fails

to

in

the

substantially
rebut

reasonableness accorded this sentence.

the

§ 3553(a)
below

presumption

the
of

See Susi, 674 F.3d at

289; Montes-Pineda, 445 F.3d at 379.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal as
to either Cheek’s convictions and resulting sentence, or as to
the revocation of supervised release and the sentence imposed
upon revocation.
sentences.
writing,

of

We therefore affirm Cheek’s convictions and

This Court requires that counsel inform Cheek, in
the

right

to

petition
9

the

Supreme

Court

of

the

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United States for further review.

If Cheek requests that a

petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this Court for
leave to withdraw from representation.

Counsel’s motion must

state that a copy thereof was served on Cheek.
We dispense with oral argument because the facts and
legal
before

contentions
this

Court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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