In the Eastern District of Michigan, Dr. Carl Fowler ran a pain clinic. Babubhai Patel opened a pharmacy in the same
building as the clinic. Patel hired
Kartik Shah to manage the pharmacy. Shah
paid Fowler to refer patients to the pharmacy, and Patel introduced Fowler to
pill dealers, known as ‘marketers,’ including Michael Thoran.
Fowler and Thoran
were convicted by a jury of conspiracy to commit health care fraud, conspiracy
to distribute controlled substances, and conspiracy to pay or receive healthcare
kickbacks.
At Fowler’s sentencing hearing, none of the parties,
including the district court, were able to determine an appropriate Guidelines
range for imprisonment and the district judge decided to start at 108
months. Without calculating the
Guidelines range or make any factual findings regarding this “appropriate”
starting point, the district court discussed the 18 U.S.C. § 3553 factors and
sentenced Fowler to 72 months imprisonment with two years’ supervised release. In addition, restitution was an issue at
sentencing and defense argued that the jury did not determine the amount of
loss and the evidence supported only twenty percent of the prescriptions being
fraudulent. The United States disagreed
and argued that $1,752,957 was actually a conservative estimate. The district court ordered restitution for $1,752,957.
In Thoran’s sentencing, the United States and defense stipulated
to a range of imprisonment of 168-210 months.
The Court addressed the § 3553 factors and sentenced him to 108 months
of imprisonment with three years of supervised release and restitution of
$2,632,854.
Both appealed their sentences and Thoran also appealed his
conviction. See United States v. Carl Fowler (14-2412); Michael Thoran (15-1073).
In Fowler’s appeal, he argued that his sentence was
procedurally and substantively unreasonable because the district court failed
to calculate the Guidelines range or make factual findings in imposing his
sentence. The Government argued that
Fowler essentially waived his right to have the Guidelines range calculated
because he agreed that 108 months was an appropriate starting point.
The Sixth Circuit took great issue with the district court’s
failure to calculate or make a factual finding about the Guidelines range. Failure of district courts to make these
calculations or factual findings “renders it impossible for the Court to
conduct any meaningful appellate review of the reasonableness of a defendant’s
sentence. “ Based on this analysis, the Sixth Circuit found Fowler’s sentence
procedurally unreasonable. The Sixth Circuit completely disregarded the
Government’s waiver argument. The Court also addressed the restitution amount
and concluded that the district court’s restitution order was based on clearly
erroneous findings.
The Court applied the same reasoning to Thoran’s sentencing
and held that “for a sentence to be procedurally reasonable, the district court
must calculate the Guidelines range and make factual findings regarding that
range.” Furthermore, the Court held that the district court abused its
discretion by failing to make specific findings regarding why Thoran should be
held accountable for the entire loss of $2.6 million.
The sentences for both defendants were remanded for
resentencing but Thoran’s convictions were affirmed.
This was certainly a job well done by Kevin M. Schad, Office
of the Federal Public Defender and Kellie Kulka, University of Cincinnati
College of Law. The oral argument for these defendants is
available online and provides further insight into these issues.
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