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August 24, 2023

Intriguing Third Circuit panel ruling rejects drug quantity finding based on extrapolation

I have long been troubled by how much weight the US Sentencing Guidelines give to drug quantities in guideline calculations, in part because of how those quantities are sometimes calculated.  A recent Third Circuit panel decision provide a small window into these stories in the course of finding insufficient how federal prosecutors sought to prove up drug quantities in the sentencing of a hinky doctor.  Here is how the opinion in US v. Titus, No. 22-1516 (3d Cir. Aug 22, 2023) (available here):

Though the prosecution bears a heavy burden of proof, we will not let it cut corners.  Dr. Patrick Titus wrote thousands of prescriptions for controlled substances.  The government properly proved that many of these prescriptions were unlawful, so we will affirm Titus’s conviction.  But many other prescriptions were lawful.  And the severity of Titus’s sentence depended on how many were not.  Rather than review every patient’s file, the government urged the court to extrapolate from a small sample.  Yet the government failed to show that doing so would satisfy its burden to prove the drug quantity by a preponderance of the evidence.  Because the court sentenced Titus without enough proof, we will vacate his sentence and remand for resentencing.

August 24, 2023 at 12:32 AM | Permalink


Extrapolation from a small sample size is how my friend and former client, Ali Sawaf, M.D. received a 20-year maximum sentence following convictions for violating 21 U.S.C. section 841(b)(1)(C), for writing prescriptions as a physician. The Government's expert witness physician testified at trial about a random sample of 50 Sawaf patient files, out of more than 2,000 patient files (a sample size of 2.5%). At Sentencing, the Government put up no additional evidence concerning the narcotics prescriptions written in the other 1,950+ patient files. No physician ever reviewed those 1,950+ patient files or the prescriptions written in them. The Government asked the District Judge to extrapolate from the 50 patient files to all 2,000 patient files, and she did it. She held Dr. Sawaf responsible for all 87,000+ narcotic pills written for the 2,000+ patients. Defense counsel did not object to preserve the issue for appeal. The extrapolation is how Judge Karen Caldwell gave Dr. Sawaf the 20-year maximum sentence. He got screwed royally, and his defense attorney failed to protect him. Mr. Alred also handled Dr. Sawaf's first direct appeal to the Sixth Circuit, and he did not raise the issue of extrapolating drug quantity on appeal, so it was forfeited. You may recall that we eventually (after Swaf had spent more than 13 years in prison) secured Habeas Corpus for Dr. Sawaf, by getting the Sixth Circuit to reverse the District Judge's decision to deny him relief for "ineffective assistance of counsel at plea bargaining". Sawaf's young criminal defense lawyer told him to turn down a 41-month plea offer and go to trial, so he might be acquitted for entrapment. Defense attorney Russell Alred gave Swaf no estimate of how long a sentence he might be facing if he went to trial and was convicted. Alred did not purchace a copy of the Federal Sentencing Guidlelines Manuel until after Sawaf was convicted. See, Sawaf v. United States, 570 F. App'x. 544 (6th Cir. 2014).

Posted by: Jiim Gormley | Aug 24, 2023 9:23:05 PM

One thing the Titus opinion makes clear is that extrapolation is not appropriate as a way to estimate Drug Quantity for sentencing when there exists a method for determining the precise quantity with certainty. For physicians who write prescriptions, that means that a Government expert witness physician will need to review each patient file and each Schedule II or III prescription written for that patient to determine whether those pills should be included in "relevant conduct" for the doctor's sentencing. Because of the record keeping for physician's patients, there is almost always a way to determine the Drug Quantity precisely. What I have observed is that the Government just doesn't want to pay their expert witness to review 2,000 patient files to get to that exact number; they want to save the money and cut corners to get to a huge relevant conduct number, which will justify the 20 maximum sentence under 841(b)(1)(C). Extrapolation should really only happen with street drug dealers, where there are no patient files or prescriptions to review -- crack dealers usually don't keep any written records at all, but a co-defendant may testify that on average, the defendant sold 2 ounces of crack, 6 days per week, for 2 years, for example.

Posted by: Jim Gormley | Aug 28, 2023 5:53:38 AM

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