OxyContin Pusher Wins Resentencing on Lack of Specificity

By Robyn Hagan Cain on December 23, 2011 | Last updated on March 21, 2019

The law is all about specificity. Sometimes, the legal profession's undying devotion to specifics means that an accused person can escape criminal prosecution. Other times, as in today's Fourth Circuit Court of Appeals case, the specifics simply delay the inevitable.

This week, the Fourth Circuit ordered resentencing in a drug conviction in U.S. v. Bell because the district court failed to properly explain its methodology for calculating a drug quantity and make findings sufficient to permit appellate review of the sentence for procedural reasonableness.

Appellant Nancy Bell pleaded guilty without a plea agreement to several counts arising out of a conspiracy to distribute oxycodone pills. Bell, who suffers from severe back pain, has had an oxycodone prescription for years.

From 2004 through April 2006, Bell was prescribed ninety 20-mg OxyContin tablets per month. In May 2006 her prescription was changed from 20-mg to 40-mg pills, at first sixty pills per month and then, beginning in June 2006, ninety pills per month. She continued to be prescribed ninety 40-mg OxyContin pills per month through August 2009.

Because oxycodone is a controlled substance, Bell was required to undergo periodic urine screenings and pill counts to ensure that she was taking the medicine. The screenings revealed that Bell was not consuming all of the oxycodone pills she was prescribed. Instead, Bell would travel to her daughter's house and sell a substantial number of pills illegally, using much of the revenue to buy lottery tickets.

The presentencing report suggested an advisory range sentence of 87 to 108 months based on the total number of OxyContin pills that Bell was prescribed during the time in question. The district court, based on weight calculations for Bell's prescribed pills and testimony from witnesses who purchased the pills, concluded the Bell's guidelines range was 97 to 121 months.

Bell challenged the sentence, arguing that her urine tests showed that she had been taking some of the pills. The Fourth Circuit Court of Appeals agreed, and vacated the sentence.

The Fourth Circuit noted that there was no explanation in the record of any of the district court's several underlying factual findings, at least some of which would have been necessary to reach the final drug amount that it attributed to Bell.

Is this a defense victory? Sure. Especially for the attorneys who get to add a win to their records. But Bell could end up with an identical sentence, albeit supported by more specific reasoning after resentencing.

Related Resources:

Copied to clipboard