UNITED STATES DISTRICT COURT

_____________ DISTRICT OF TEXAS

______________ DIVISION

UNITED STATES OF AMERICA	      	§
						§
V.						§	CAUSE NO. __________
						§
___________________ 		            §

DEFENDANT’S OBJECTIONS TO PRESENTENCE  REPORT

	_________, through his attorney, respectfully presents the following Objections to the Presentence Investigation Report ("PSR") prepared on November 13, 2003 as follows:
Objections to PSR	
	(1) _______ objects to the PSR’s omission of any reference to the 11(c)(1)(C) agreement between the defense and the government in which both parties agree that “the appropriate disposition of this case is a sentence not to exceed thirty (30) months of imprisonment.”1   ___________ requests that a reference be made to this provision in part A, paragraph 3of the PSR.
	(2) ______ objects to the PSR’s recommendation that a vulnerable victim adjustment be applied.  (See Part A, paragraph 27.)  The PSR states that this 2-level upward adjustment is applicable because “________ knew that many patients were abusing the drugs he prescribed; [and that] therefore they were vulnerable victims.” ________ objects to the assertion that he knew that “many” of his patients were abusing the drugs he prescribed.  He also objects to the assertion that a patient’s addictive status made him or her a vulnerable victim for purposes of U.S.S.G. §3A1.1.  
 	Guideline §3A1.1 provides an enhancement of sentence “if the defendant knew or should have known that a victim of the offense was a vulnerable victim.” U.S.S.G. §3A1.1(b)(1); see also United States v. Moree,897 F.2d 1329, 1335 (5th Cir.1990).  The vulnerability that triggers § 3A1.1 must be an "unusual" vulnerability which is present in only some victims of that type of crime.  United States v. Wilson, 913 F.2d 136, 138 (4th Cir.1990) (citing Moree, 897 F.2d 1329, 1335).  An unusually vulnerable victim is one who is “less able to resist than the typical victim of the offense of conviction.” United States v. Wetchie, 207 F.3d 632, 634 (9th Cir.2000).  In  addition,  the defendant’s choice of a likely victim must show the “extra measure of criminal depravity” that §3A1.1 is meant to punish,  Moree, 897 F.2d 1329, 1335.  Thus, the adjustment cannot be employed unless the victim is chosen because of some unusual personal vulnerability.  Id.; see also United States v. Creech, 913 F.2d 780 (10th Cir.1990)(same); United States v. Boult, 905 F.2d 1137, 1139 & n. 3 (8th Cir.1990) (same).  And, the particular vulnerability cannot be one that has already been taken into account in the formulation of the offense guideline applied in the defendant’s case. See United States v. Williams, 291 F3d 1180, (9th Cir. 2002) (noting that the application notes to U.S.S.G. §3A1.1 states that the enhancement for targeting a vulnerable victim is not appropriate "if the factor that makes the person a vulnerable victim is incorporated in the offense guideline”).
	The vulnerable victim adjustment cannot be properly applied in this case because _________ did not target these patients because of their addiction-related vulnerability. The Government has argued that __________ is criminally liable because his drug prescribing practice was objectively unreasonable and his conduct fell outside generally recognized and accepted medical practice in the United States. ___________, through the course of this prosecution, has come to recognize that his medical practice was objectively unreasonable. Nonetheless, while he was engaging in his practice, he genuinely believed that he was meeting a legitimate medical need in treating these patients. While ________ recognized that the drugs he prescribed had addictive potential and that some patients may have been addicted, he also believed that his patients were suffering from intractable pain and that sometimes intractable pain and addiction coexist.  He did not seek out these patients because of their addiction-related vulnerability, nor did he seek to take advantage of them because of any such vulnerability.  As such, the vulnerable victim adjustment is inappropriate. 
	Further, the vulnerable victim adjustment is not appropriate in this case because it is inaccurate to characterize the people who sought to purchase these prescriptions as victims.   The Government has maintained that many of _________  patients were simply drug-seekers attempting to fraudulently obtain prescriptions for other than a legitimate medical need.  In light of that, it seems incredulous to characterize them as victims.  They knowingly engaged in this conduct, and they arguably could be subject to criminal liability for having done so. __________ crime was failing to put in place the establishment-sanctioned screening methods designed to insure that such drug-seekers were not successful in obtaining the sought-after prescriptions.  It is disingenuous to skew the balance of culpability to the extent of characterizing those who engaged in this conduct as vulnerable victims.  
	Most significantly, the vulnerable victim adjustment is not proper in this case because the drug-addicted status of the typical customer-victim is a factor that has been taken into account in the offense guideline used to calculate __________ sentence.  See Williams, 291 F3d 1180  (vulnerable victim enhancement is not appropriate "if the factor that makes the person a vulnerable victim is incorporated in the offense guideline”); see also United States v. Castaneda, 239 F.3d 978, 981 (9th Cir. 2001) (the appropriateness of conceptualizing the vulnerable adjustment in terms of victims who are more vulnerable than the usual victims of the offense is confirmed by the rule that the adjustment should not apply when vulnerability is already reflected in the offense guideline); see also Wetchie, 207 F.3d 632, 634 n. 4.  If the factor that makes the victim vulnerable is not "unusual" for victims of the offense, the § 3A1.1(b) enhancement is not permitted.  
	__________ pleaded guilty to a controlled substance distribution offense.  The applicable guideline, §2D1.1, is the one applied to any other controlled substance distribution offense.  Controlled substances by nature tend to be addictive, and those who seek to purchase them tend to be drug addicts.  Drug addiction is not an unusual vulnerability of those who seek to buy from an unlawful distributor of a controlled substance.  That the guidelines provide a higher punishment for those who distribute than for those who merely possess such substances, reflects that the Sentencing Commission considered the customer’s drug-addicted status in formulating these guidelines.  As such, the vulnerable victim enhancement should not be applied in this case.

	Prayer
	WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court sustain his objections to the Presentence Report.
	
						Respectfully submitted.

						_____________________________
						Attorney for Defendant