NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 17-2954

UNITED STATES OF AMERICA

v.

JOSEPH MEHL a/k/a JOSEPH MONTANERO

Joseph Mehl, Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 2-15-cr-00021-005) District Judge: Honorable Nitza I. Quinones Alejandro

Submitted Under Third Circuit L.A.R. 34.1(a) (Submitted: January 18, 2019)

Before: GREENAWAY, JR., SHWARTZ, and PORTER Circuit Judges.

(Opinion Filed: August 15, 2019)

OPINION *

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. GREENAWAY, JR., Circuit Judge.

This case arises from a drug conspiracy (a “pill mill”) in which Appellant Joseph

Mehl and others referred illegitimate “pseudo-patients” to a doctor who illegally

prescribed opioids for profit. After Mehl entered an open plea of guilty of conspiracy to

distribute controlled substances in violation of

, the District Court

sentenced him to 180 months’ imprisonment, imposed a three-year period of supervised

release, and ordered him to pay a special assessment of $100. Mehl challenges the

District Court’s sentence, arguing that the District Court erred in calculating the drug

quantity attributable to him, erred in finding that Mehl was responsible for certain acts

that occurred after his alleged withdrawal from the conspiracy in July 2013, and thus

imposed a procedurally unreasonable sentence. For the reasons detailed below, we will

affirm the District Court’s sentence.

Mehl met William O’Brien III, a doctor of osteopathic medicine, after he was

involved in an automobile accident in June 2011. Mehl began sending pseudo-patients to

O’Brien for prescriptions of controlled substances. From March 2012 through January

2015, O’Brien sold medically unnecessary prescriptions for medications—including

oxycodone, methadone, and Xanax—to pseudo-patients with the help of Mehl and the

other co-conspirators. O’Brien also provided prescriptions for narcotics to drug

traffickers, many of whom were members of the Pagans Motorcycle Club of Philadelphia

(“Pagans”). Sam Nocille, president of the Pagans, devised a scheme whereby members 2 of the gang would fill the prescriptions supplied by O’Brien, and sell them on the street

for cash. Nocille received a kickback from the proceeds of the sale of the illegally

obtained drugs until his death in January 2014.

The parties contest the extent of Mehl’s involvement in the pill mill. According to

the Government, Mehl’s role was to recruit pseudo-patients, accompany them to the

pharmacy to fill their prescriptions, help collect payments from the illegal sale of those

prescriptions, and pay a portion of the proceeds to Nocille. The Government argues that

Mehl brought in a pseudo-patient group consisting of several individuals, including his

wife, ex-wife, and brother-in-law, each of whom procured medically unnecessary

prescriptions from O’Brien. The parties agree that in the early stages of the conspiracy,

Mehl facilitated the introduction of members of the Pagans to O’Brien, but Mehl argues

that his role in the conspiracy was only marginal. In total, Mehl was found responsible

for the marijuana equivalent of 15,383.53 kilograms of controlled substances.

On July 14, 2015, Mehl and eight codefendants (including O’Brien) were charged

with conspiracy to distribute Schedule II controlled substances, in violation of

(Count Two). On April 14, 2016, Mehl entered an open guilty plea in the United

States District Court for the Eastern District of Pennsylvania to the Count Two

conspiracy charge. The District Court sentenced Mehl to 180 months’ imprisonment,

three years of supervised release, and ordered him to pay a special assessment of $100.

3 1

Mehl argues that the District Court’s sentence was procedurally unreasonable on

three grounds. First, according to Mehl, the District Court miscalculated the drug

quantity attributable to him for sentencing purposes; therefore, his base offense level of

34, his final adjusted offense level of 37, and his advisory Sentencing Guideline range of

262-327 months of incarceration were incorrect. 2 Second, Mehl argues that the District

Court erred in finding that Mehl was responsible for certain acts that occurred after his

alleged withdrawal from the conspiracy in July 2013. Third, Mehl asserts that the

District Court failed to consider the nature and circumstances of his offense as required

by

(a)(1).

We review a district court’s “application of the Guidelines to the facts for abuse of

discretion and its factual findings for clear error.” United States v. Blackmon,

(3d Cir. 2009) (internal quotation marks and citations omitted). “The

Sentencing Guidelines are now advisory, but a sentence will be found procedurally

unreasonable when a district court fails to calculate accurately the sentencing range

suggested by the Guidelines.”

(citing Gall v. United States,

(2007)). “The party challenging the sentence bears the ultimate burden of proving its

1 The District Court had jurisdiction pursuant to

and we have jurisdiction under

and

(a). 2 Because the statutory maximum term of imprisonment for Mehl’s offense was twenty years, however, the recommended Guidelines sentence was capped at 240 months. 4 unreasonableness, and we accord great deference to a district court’s choice of final

sentence.” United States v. Lessner,

(3d Cir. 2007) (internal citations

omitted).

Under the Guidelines, relevant conduct in a conspiracy includes “all acts and

omissions committed, aided, abetted, counseled, commanded, induced, procured, or

willfully caused by the defendant; and . . . all reasonably foreseeable acts and omissions

of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G.

§ 1B1.3(a)(1)(A), (a)(1)(B). As the commentary to § 1B1.3 explains, a person convicted

of conspiracy to distribute controlled substances “is accountable for all quantities of

contraband with which he was directly involved and . . . all reasonably foreseeable

quantities of contraband that were within the scope of the criminal activity that he jointly

undertook.” United States v. Iglesias,

(3d Cir. 2008) (omission in

original) (emphasis omitted) (quoting U.S.S.G. § 1B1.3 cmt. n.2). However, “when a

defendant is convicted of drug distribution, ordinarily a district court should exclude from

the total drug quantity any amount possessed for his personal consumption.” Id.

(citing Jansen v. United States,

(3d Cir. 2004)).

According to Mehl, the District Court erroneously determined that he was

responsible for the prescriptions of patients without sufficient material evidence to

support such a finding. We disagree. The District Court made the specific finding that

Mehl brought several different categories of individuals into the conspiracy, each of

whom contributed to the use or sale of illegal substances. To support this finding, the 5 District Court relied on Mehl’s own post-arrest admissions to the authorities, patient

charts seized from O’Brien’s office, testimony from several witnesses, and a list of

recruited patients offered by a former pill mill employee. Furthermore, the District Court

attributed 50% of the oxycodone 30 mg pills to Mehl’s personal use, illustrating that it

accepted—albeit in part—Mehl’s argument that he struggled with substance abuse and

had nerve damage, and obtained pills from O’Brien for personal use. See United States v.

Miele,

(3d Cir. 1993) (“Where there is other evidence to support

the higher end of an estimated range, the court may certainly rely on the higher

estimate.”). The quantity of drugs that the District Court attributed to Mehl was

reasonable and supported by the record. Therefore, the District Court’s calculation of

Mehl’s offense level under the advisory Sentencing Guidelines was not erroneous.

Mehl also argues that the District Court erred by declining to conclude that Mehl

withdrew from the conspiracy in July 2013. To establish withdrawal, Mehl “must present

evidence of some affirmative act of withdrawal on his part, typically either a full

confession to the authorities or communication to his co-conspirators that he has

abandoned the enterprise and its goals.” United States v. Steele,

(3d Cir. 1982) (citations omitted). Mehl did not present this evidence. Instead, he

contends that the purpose of the conspiracy was for him to obtain pills to support his

addiction, and since the record suggests that he stopped receiving pills in July 2013, the

record also supports his argument that he withdrew from the conspiracy in July 2013.

Mehl’s characterization overlooks evidence in the record, which shows that the pill mill 6 conspiracy in which he was involved was much larger than a simple exchange between

Mehl and O’Brien for prescription substances. The District Court found, based on

evidence in the record, that Mehl was responsible for bringing several individuals into the

pill mill conspiracy—individuals who continued to receive pills and sell them well after

July 2013. Evidence in the record also supports the District Court’s finding that Mehl

offered to help Nocille collect on proceeds from the scheme in January 2014. Taken

together, the record does not support Mehl’s argument that the District Court erred in

attributing drugs that were obtained and sold after his alleged withdrawal.

Mehl’s argument that the District Court failed to properly to consider the

§ 3553(a)(1) factors is similarly unconvincing. “Ultimately, ‘[t]he touchstone of

“reasonableness” is whether the record as a whole reflects rational and meaningful

consideration of the factors enumerated in

(a).’” United States v. Tomko,

(3d Cir. 2009) (quoting United States v. Grier,

(3d

Cir. 2007) (en banc)). During the sentencing hearing, the District Court expressly took

the § 3553(a) sentencing factors into consideration. Under the Sentencing Guidelines,

Mehl was eligible for 240 months’ imprisonment; however, based on “the arguments for

a variance, . . . [Mehl’s] own allocution, [and] the relevant [§] 3553(a) factors,” the

District Court sentenced Mehl to a term of 180 months’ imprisonment. SA 240. It is

manifest that the District Court considered the relevant sentencing factors, therefore

Mehl’s argument is without merit.

7 For the foregoing reasons, we will affirm the District Court’s sentence.

8