USA v. Samuel Ashby
Per Curiam OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Eugene E. Siler , Jr., Circuit Judge; Raymond M. Kethledge, Circuit Judge and Stephen J. Murphy , III, U.S. District Judge for the Eastern District of Michigan. (3 pages)
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0760n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
SAMUEL M. ASHBY, MD,
Jul 13, 2012
LEONARD GREEN, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE
BEFORE: SILER and KETHLEDGE, Circuit Judges; MURPHY, District Judge.*
PER CURIAM. Samuel M. Ashby appeals the 108-month sentence imposed upon his guilty
plea to charges of distribution of oxycodone, health care fraud, and income tax evasion.
Ashby, who was a licensed physician, wrote prescriptions for pain medication to people he
had not examined in exchange for cash that he did not report as income for tax purposes. His
customers claimed insurance benefits for the prescriptions they had filled. The guidelines sentencing
range was calculated at 108 to 135 months. Ashby did not object to the guidelines sentence
calculation, but moved for a variance. He argued that he could not repeat his crimes because he had
lost his medical license, and that a sentence within the guidelines range would be too severe
considering his age, 62.
The Honorable Stephen J. Murphy III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
United States v. Ashby
At the sentencing hearing, Ashby repeated the arguments raised in his motion, but the district
court found no persuasive reason to grant a downward variance. Ashby was sentenced at the bottom
of the guidelines range.
Ashby challenges his sentence on appeal, arguing that the district court erred in presuming
that a guidelines sentence would be reasonable, and in failing to consider that his age rendered the
sentence greater than necessary. We review a criminal sentence under an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Ashby cites Nelson v. United States, 555 U.S. 350 (2009) (per curiam), as authority for the
proposition that the district court may not presume a guidelines sentence is reasonable. The instant
case is distinguishable from Nelson, however, because the sentencing judge here never stated that
it presumed a guidelines sentence was reasonable. There is nothing wrong with using the guidelines
sentence as a benchmark if the court finds no persuasive reason to grant a variance. See United
States v. Davila-Gonzalez, 595 F.3d 42, 47-8 (1st Cir. 2010). Here, the district court stated that a
guidelines sentence was necessary to reflect the seriousness of the offense, promote respect for the
law, and deter others from similar criminal conduct.
Ashby argues that the district court should have considered his age and the fact that
recidivism was unlikely, pointing to United States v. Carter, 538 F.3d 784, 791-92 (7th Cir. 2008).
The district court was within its discretion in determining that the factors upon which it explicitly
based the sentence were more important than the apparently unlikely chance of recidivism in this
case. The court indicated that it had considered Ashby’s age and health, and recommended that he
be housed in a medical facility. The fact that Ashby desired a more lenient sentence is insufficient
United States v. Ashby
to disturb the reasoned judgment of the district court. See United States v. Trejo-Martinez, 481 F.3d
409, 413-14 (6th Cir. 2007).
Accordingly, the district court’s judgment is affirmed.
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