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United States v. Strength

United States District Court, M.D. Alabama, Northern Division

December 17, 2014



MYRON H. THOMPSON, District Judge.

Defendant Susie Michelle Strength pled guilty to tampering with a consumer product, pursuant to 18 U.S.C. § 1365(a)(4). At her sentencing, the court granted her motion for a downward variance, ' but rejected the parties' plea agreement, primarily because the agreement failed to assure timely, needed drug-treatment for Strength. The court, instead, fashioned what it believed to be a sufficiently comparable sentence that will assure such: a sentence of six months in custody followed by two years in a residential drug-treatment program. This opinion explains why.


Strength, a former nurse suffering from a severe drug addiction to opiate painkillers, took morphine for personal use from the pharmacy at the hospital where she worked and then covered up the theft by replacing much of the morphine with saline solution. This cover-up was the basis for her conviction of tampering with a consumer product.

Strength's addiction to pain medications stemmed from a series of physical and emotional traumas. Strength was physically healthy until January 2008, when she was "t-boned" on the driver's side of her car, while driving with her five-year-old daughter. Strength lost consciousness and was airlifted to the hospital. She suffered pelvic and hip fractures, a lacerated scalp, and a concussion. After the accident, she experienced high levels of pain and was unable to work for about two months. She was prescribed Lortab, an opiate painkiller, for about six months for the pain.

Near the end of her second pregnancy in 2009, she again experienced significant hip pain, and she was again prescribed Lortab. She ended up having a C-section, after which she was prescribed morphine and Percocet for pain. After her son's birth, she was also diagnosed with depression and treated with anti-depressants, which she felt were ineffective.

In 2010, she again experienced severe hip pain, as well as a newly bulging disc in her back that made it difficult for her to function. Her doctor prescribed Lortab and a muscle relaxer. She was given epidurals and nerve blocks for pain, but they were ineffective. She was referred to a neurologist, who diagnosed her with nerve damage on her left leg and referred her to a pain specialist. The pain specialist prescribed Lortab, along with other medications. This treatment was successful. Strength reports that she was responsible with her medication during this period.

Unfortunately, in 2012, Strength was in another serious car accident, which resulted in a fatality. The accident occurred late at night in the rain. A car was disabled on the side of the road and a good Samaritan' had stopped to help the driver and occupant of the car. Strength accidentally hit the three people, who were standing in the road at the time. One of the people who had been in the disabled car died. (Strength was not charged in the incident.) Strength sustained contusions and was prescribed Percocet for pain.

Severe hip pain returned after the accident. Strength also became overwhelmed by grief about the death. She cried constantly for the three months afterwards. Then, a few months after the 2012 accident, one of the people from the accident sued her, causing additional stress. She began going to a psychiatrist and therapy. She felt exhausted, overwhelmed, and "shut down, " and began having great difficulty at work.

Strength was diagnosed with PTSD due to the accident. She suffered nightmares and insomnia and was unable to drive in wet weather or on the road where the accident occurred. Her husband had to drive her to work. She still experiences anxiety when anything reminds her of the accident.

Strength also has been diagnosed with recurrent Major Depressive Disorder and generalized anxiety. As mentioned above, she was first diagnosed with depression after the birth of her son. Strength currently is prescribed two anti-depressants. She also takes Motrin and Tylenol for pain, and continues to experience chronic pain. She attends therapy and receives psychiatric care.

Strength's narcotic abuse developed after the accident in 2012. At first, she avoided taking her prescribed Lortab on days when she worked. By the fall of 2012, Strength had begun taking extra Lortab on her days off of work. She gradually increased to taking Lortab every day. She also abused Xanax, which she had been prescribed for anxiety.

Her addiction grew progressively worse from there. In late 2012, she left her job in pediatric oncology after concern arose that she was coming to work while under the influence of narcotics.

In 2013, she obtained a new job at a hospital tending to adult patients. She heard that another nurse had taken morphine and replaced it with saline. Overwhelmed and in pain, she did the same. A suspicious pharmacist sent three bottles of morphine that had loose tops to a lab for analysis, and the analysis revealed that out of the 10 mg of fluid in the bottles, only 1.8 mg was morphine. The investigation also noted that some patients under her care complained of ineffective pain control and that records showed that she was giving patients two pain medications at the same time, which is an unusual practice.

Shortly after being confronted with the allegations, Strength turned herself in and voluntarily surrendered her nursing license, well before she was indicted.


Strength's crime of conviction carries a custodial sentence of zero to ten years. 18 U.S.C. § 1365(a)(4). As described below, the Sentencing Guidelines range for this offense is 41 to 51 months. In a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), the government and Strength agreed to a sentence of 24 months incarceration, with a recommendation for immediate placement in the Bureau of Prison's Residential Drug Abuse Program (RDAP). Probation recommended the same sentence. To effect this agreement, Strength moved for a downward variance from the Guidelines range.

The government and Strength agreed that a sentence of 24 months with a recommendation for immediate placement in the RDAP would be reasonable and appropriate given the 18 U.S.C. § 3553(a) factors, particularly because of Strength's need for drug treatment for abuse of pain medication.

A. Strength's Guidelines Calculations

Before adjustments or departures, Strength's base-offense level was 25. USSG § 2N1.1(a). However, she received a three-level downward adjustment for acceptance of responsibility. USSG § 3E1.1(b). Therefore, her final offense level was 22. Since Strength has no criminal history, she was in criminal history category I, resulting in a Guideline sentence range of 41-to-51 months. The offense-related adjustments for "serious bodily injury" or "death" were not applicable.

B. Judicial Discretion in Sentencing

Having reviewed the Guidelines calculation, the court next determined a reasonable sentence. Under the Supreme Court's current Booker framework, the Sentencing Guidelines are not mandatory. United States v. Booker, 543 U.S. 220, 245 (2005). Instead, the district court must independently determine a reasonable sentence by applying the sentencing factors listed in 18 U.S.C. § 3553(a):

"(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
"(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
"(3) the kinds of sentences available;
"(4) the kinds of sentence and the sentencing range established for-
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the [sentencing] guidelines...
"(5) any pertinent policy statement [by the Sentencing Commission]...
"(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
"(7) the need to provide restitution to any victims of the offense."

While calculations by the Guidelines are an attempt to approximate these diverse factors, a trial court may, in the course of an individual sentencing, determine that "the case at hand falls outside the heartland' to which the Commission intends individual Guidelines to apply" or "the Guidelines sentence itself fails properly to reflect § 3553(a) considerations...." Rita v. United States, 551 U.S. 338, 351 (2007).

C. Strength's Sentence

In this case, the court faced a dilemma, requiring it to balance competing values: to ensure that Strength, who the parties agreed has a serious opioid addiction that requires treatment, receives necessary treatment that prevents recidivism, while also imposing a sentence that appropriately reflects the nature and circumstances of the offense, the characteristics of the defendant, the seriousness of the offense, and the need for just punishment.

Having calculated the Guidelines range, having considered relevant policy statements, and having independently evaluated the resulting sentence in view of the § 3553(a) factors, the court rejected the Guidelines sentence. Instead, the court sentenced Strength to six months of incarceration followed by 24 months in a residential drug-treatment program as a special condition of the defendant's three-year supervised release term. The court chose this sentence for several reasons.

The court agreed with the government and Strength that a substantial downward variance' from the 41-to-51 month Guidelines sentence was warranted, for the nature and circumstances of this case take it far outside the heartland of cases the court has seen. The court, of course, has seen many defendants whose crimes are related to-or in large part caused by-their drug abuse. However, unlike the vast majority of drug abusers the court has seen, Strength did not become a drug addict through recreational, illicit drug use, but as a result of physician-prescribed treatment with very powerful opiate medication for serious chronic pain, which she suffered due to two horrific accidents. In short, her illegal personal use of drugs grew out of an addiction based on her legal personal use. In light of Strength's lack of fault in the circumstances that led to her addiction, the parties properly agreed that a substantial variance was appropriate.[1]

The court also agreed with the government and Strength that Strength's conduct warranted some incarceration or something comparable. See 18 U.S.C. § 3553(a)(2)(A)&(B). While Strength pled to one count of removing morphine from a bottle and replacing it with saline, the presentence report found that morphine was missing from three bottles, and she admitted that her actions caused patients to unnecessarily suffer pain. Strength administered additional pain medication to her patients, apparently to compensate for the effects of the diluted morphine; however, this act shows her conscious awareness of the risk that her actions would cause her patients pain. This was a very serious offense. Moreover, given that she was introducing a foreign substance into injectable medication, it could have been much worse.

The court also agreed with the government and Strength that Strength is in need of immediate and substantial drug treatment, both to help heal Strength and help protect the public from Strength's potential recidivism. See 18 U.S.C. § 3553(a)(2)(D) (courts shall consider the need to provide the defendant with needed medical care in the most effective manner) & § 3553(a)(2)(C) (courts shall consider the need for a sentence "to protect the public from further crimes of the defendant").

In effort to reflect all these concerns, the government and Strength agreed to a sentence of 24 months in the Bureau of Prisons, with a recommendation of immediate placement in RDAP, a 500-hour intensive substance-abuse treatment program. However, the rub for the court was that the proposed 24-month sentence was too short to guarantee sufficiently that Strength would receive treatment in custody. The Bureau of Prisons has significant waiting lists to get into the RDAP program, and, depending on whom one asks, the Bureau requires a minimum of a 24-month or 33-month sentence to get into the program. The Bureau moves each prisoner from prison (where the treatment program is available) to a halfway house approximately six months before release; this reduces the term during which the treatment can be provided. In addition, on its website, the Bureau states that one factor in whether a prisoner is admitted to RDAP is whether the prisoner's sentence is long enough to complete the program. In light of all these factors, the court was deeply concerned that Strength would more than likely end up receiving no treatment during incarceration at all, and then being released back into the free world without adequate preparation to stay drug-free.

Seeking to address this concern, the court invited the parties and the Probation Department to submit alternative proposals that would guarantee that the defendant would receive treatment but would provide an approximately equivalent punishment. While the government and defense, bound by their plea agreement, did not submit an alternative sentencing proposal, probation identified and proposed a 24-month placement at a residential drug-treatment program for women.[2]

The court adopted this program as part of the sentence but added a six-month term of incarceration. In light of the seriousness of the offense the defendant committed, particularly the act of covering up her theft of medication by replacing morphine with saline in one or more bottles that would be later used by patients, the court felt it imperative that she receive a significant sentence of incarceration in addition to the punishment of being removed from her family for 24 months, as just punishment and as a deterrent from reoffending. See 18 U.S.C. § 3553(a)(2)(A)&(B).

In choosing the sentence it did, the court also sought to impose a punishment that was approximately equivalent to the reduced one agreed to by the government and Strength. As stated, the government and Strength agreed that a sentence of 24 months was the appropriate period of time for Strength to be removed from her community and family as punishment for this offense. While the court's sentence substituted the 24-month residential drug treatment for 18 months of the prison sentence, it compensated by actually removing Strength from her community and family for a total of 30 months-six months of imprisonment and 24 months of residential drug treatment-followed by an additional year of supervised release. Thus, the court's sentence will actually pull Strength away from her family for a longer period of time than provided in the plea agreement. For Strength, who has no criminal history or experience serving time in jail or prison, this will be a difficult and life-changing experience.

Therefore, under the imposed sentence, the court attempted to maintain, or arguably even enhance, Strength's punishment and subsequent deterrence by separating her from her community for a significant period of time, while, at the same time, attempting, with the assured residential drug treatment, to take more aggressive steps to help protect the public from her potential recidivism.

* * *

For all these reasons, the court found that the sentence imposed was sufficient but not greater than necessary to comply with the purposes of § 3553(a).

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