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United States v. Opitz

United States District Court, E.D. Pennsylvania

July 20, 2018



          STENGEL, C.J.

         On July 11, 2016 Eric C. Opitz pleaded guilty to all counts in a twenty-count indictment for health care fraud, mail fraud, distribution of human growth hormone, and distribution of anabolic steroids, a Schedule III controlled substance. On January 26, 2017, Opitz was sentenced to 18-months' imprisonment on each of the twenty counts, all to run concurrently. Defendant was also ordered to pay $171, 353 in restitution to Medicare. The Third Circuit Court of Appeals affirmed Mr. Opitz's judgment and sentence on August 8, 2017. U.S. v. Opitz, 704 Fed.Appx. 66 (3d Cir. 2017).

         Defendant filed a timely pro se motion to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 67.) On June 5, 2018, the government filed a response in opposition (Doc. No. 70) and on June 14, 2018 defendant filed a counseled reply brief. (Doc. No. 71.) For the reasons discussed below, petitioner's motion is denied in its entirety without an evidentiary hearing.

         I. Background

         The pertinent factual background is summarized by the Third Circuit's opinion in addressing Opitz's appeal:

Opitz suffers from human growth hormone deficiency and received a prescription for Genotropin, a human growth hormone supplement. Medicare paid for Opitz's Genotropin at a cost of approximately $461 per kit. From July 2012 through June 2014, Opitz sold the Genotropin for approximately $425 per kit, using postings on Craigslist. Undercover agents contacted Opitz through a Craigslist advertisement and purchased Genotropin from him. In addition, law enforcement identified more than twenty people who purchased the drug from Opitz.
A grand jury returned a twenty-count indictment charging Opitz with health care fraud in violation of 18 U.S.C. § 1347 (Counts I-10); mail fraud, in violation of 18 U.S.C. § 1341 (Counts 11-13); distribution of human growth hormone, in violation of 21 U.S.C. § 333(e) (counts 14-17); and distribution of controlled substances in violation of 21 U.S.C. § 841 (Counts 18-20). Opitz pled guilty to all of the charges in the indictment without a plea.
At the sentencing hearing, the District Court considered evidence of the loss sustained as a result of Optiz's health care fraud. The Government argued that a loss figure totaling $171, 353 was appropriate because it was at least, if not less than, the amount Medicare paid for the Genotropin Opitz admitted he fraudulently obtained, as reflected by his plea to Counts One through Ten of the indictment. The Government asserted that this was a reasonable figure because Opitz had not revealed to Medicare his intention to sell some of the drugs and thus he had received all of the drugs from Medicare under a false pretense. The Government also presented evidence from Opitz's bank account showing cash deposits totaling $97, 760, which, it said, included approximately $33, 000 in wire transfers from his customers, records from the Sands Casino in Bethlehem indicating Opitz made over $400, 000 in buy-ins, handwritten notes taken from Opitz's residence showing the contact information for Genotropin customers and calculations for past sales, and his posting on Craigslist of over 1, 800 advertisements offering to sell Genotropin. Opitz argued that while he was guilty of selling Genotropin, he used most of the drugs himself and should be responsible only for the value of the drugs that the Government proved he resold, which totaled $46, 514.
In addressing the loss calculation under the Guidelines, the District Court found that the evidence supported the Government's proposed intended loss calculation of approximately $171, 000. Applying the grouping rules, Opitz faced a Guidelines range of fifteen to twenty-one months. The Court imposed a sentence of eighteen months' imprisonment followed by three years of supervised release, and ordered Opitz to pay a special assessment of $2, 000 and restitution of $171, 353 to Medicare. Although Opitz objected to the Guideline loss calculation, he did not object to the restitution order.

704 Fed.Appx. at 68 (footnotes omitted). The Court of Appeals affirmed Opitz's judgment of conviction and sentence. Id.

         II. Standard of Review

         "Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution." Okereke v. United States. 307 F.3d 117, 120 (3d Cir. 2002). Section 2255 permits a prisoner sentenced by a federal court to move the court that imposed the sentence to "vacate, set aside, or correct the sentence" where: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a).

         Section 2255(b) provides the procedure for reviewing the motion:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the ...

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