Jon Riley Hays v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2456
J ON R ILEY H AYS ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03 C 310—David R. Herndon, Judge.
____________
A RGUED D ECEMBER 6, 2004—D ECIDED F EBRUARY 10, 2005
____________
Before E ASTERBROOK , K ANNE , and E VANS , Circuit Judges.
K ANNE , Circuit Judge. Jon Riley Hays, a licensed medical
doctor, pled guilty to two charges stemming from his illegal
use of OxyContin. Count I charged Hays with tampering
with a consumer product, and Count II charged him with
possession of a controlled substance by misrepresentation
or fraud. Hays was sentenced to fifty-one months in prison
for Count I and a concurrent sentence of forty-eight months
for Count II. Hays now asks for collateral relief under 28
U.S.C. § 2255, claiming that his attorneys provided ineffec-
tive assistance and that his plea was not voluntary because
he did not understand the nature of the charges against
him. The district court denied his motion. For the reasons
set forth in this opinion, we affirm.

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2 No. 04-2456
I. History
Hays practiced medicine in several towns in rural Illinois.
In early 2000, he was involved in a car accident which
caused injury to his back. He began taking OxyContin to
relieve his pain and became addicted to the drug. Although
the recommended oral dosage was 20 to 40 mg per day,
Hays would often inject approximately 300 mg of the drug
in a day.
In order to gain access to such a large amount of
OxyContin, Hays prescribed it to his patients and then stole
the drug from them during house calls. How he did this is
in some dispute. The state argues that he crushed the
OxyContin tablets, dissolved the particles in a syringe, and
injected the patient with a portion of the dissolved drug. He
then left with a syringe filled with the drug and some of the
remaining tablets for his own use. Hays denies that he
injected patients with the dissolved OxyContin, stating that
he thought “crushing something . . . would be dangerous.”
He claims that he occasionally broke pills in half or pre-
scribed more of the drug than the patient needed so that he
could take some of the pills for himself. He also injected
some patients with a placebo (i.e., lidocaine or saline) so
that he could inject the entire dosage of OxyContin into
himself.
Under Count I of the indictment, Hays was charged with
tampering with a consumer product:
Whoever, with reckless disregard for the risk that
another person will be placed in danger of death or
bodily injury and under circumstances manifesting
extreme indifference to such risk, tampers with any
consumer product that affects interstate or foreign
commerce . . . [shall] be fined under this title or impris-
oned not more than ten years, or both.
18 U.S.C. § 1365(a), (a)(4). Count II alleged that Hays had
“acquire[d] or obtain[ed] possession of a controlled sub-

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No. 04-2456 3
stance by misrepresentation, fraud, forgery, deception, or
subterfuge.” 21 U.S.C. § 843(a)(3). Hays pled guilty to these
charges but now seeks relief from his fifty-one
month sentence under 28 U.S.C. § 2255.
II. Analysis
Relief under § 2255 “is reserved for extraordinary situa-
tions.” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.
1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34
(1993)). The court may vacate or correct Hays’s sentence
if he can “show that the district court sentenced him in
violation of the Constitution or laws of the United States or
that the sentence was in excess of the maximum authorized
by law or is otherwise subject to collateral attack.” Prewitt,
83 F.3d at 816 (citing Theodorou v. United States, 887 F.2d
1336, 1338 n.2 (7th Cir. 1989)). We review the district
court’s denial of the § 2255 motion de novo. McCleese v.
United States, 75 F.3d 1174, 1177 (7th Cir. 1996).
In order for a plea to be valid, it must be made volun-
tarily, knowingly, and intelligently. See United States v.
Gilliam, 255 F.3d 428, 432-33 (7th Cir. 2001) (citing
McCarthy v. United States, 394 U.S. 459, 466 (1969)). Hays
now argues that his plea was not intelligent or volun-
tary and that his attorney provided ineffective assistance.
A. Hays’s Conduct Affected Interstate Commerce
A guilty plea is not made intelligently unless the defen-
dant receives “real notice of the true nature of the charge
against him . . . .” Smith v. O’Grady, 312 U.S. 329, 334
(1941). Hays argues that because “neither [Hays], nor his
counsel, nor the court correctly understood the essential
elements of the crime with which he was charged,” the
guilty plea is not valid. See Bousley v. United States, 523
U.S. 614, 618-19 (1998). The misunderstanding that

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4 No. 04-2456
Hays alleges relates to the interstate commerce element
of 18 U.S.C. § 1365(a).
Hays relies on a Tenth Circuit decision as support for his
argument that neither his counsel nor the court truly
understood what was necessary for proving the inter-
state commerce element of § 1365(a). In United States
v. Levine, the court held that “the effect on interstate
commerce must occur at or after the tainting.” 41 F.3d 607,
614 (10th Cir. 1994). The court noted that “the interstate
commerce requirement is phrased in the present tense.” Id.
Therefore, it should be read to penalize one who tampers
with a product that “affects interstate commerce.” This
“suggests that the consumer product must have either a
present effect or an effect in the future, and appears to
exclude pre-tainting events.” Id.
At the change of plea hearing, the court established that
OxyContin is manufactured in Minnesota and that the
tampering occurred in Illinois. This was taken as ade-
quate evidence of an effect on interstate commerce. Hays
believes that the question should have been whether
the drug had any effect on interstate commerce after
Hays gained access to the OxyContin at the homes of
his patients. He argues that his lawyers should have
been aware of Levine and should have advised him not
to plead guilty.
Even if it is on point, a Tenth Circuit decision is not
binding on courts in other circuits. See United States v.
Glaser, 14 F.3d 1213, 1216 (7th Cir. 1994). We decline to
follow Levine. We find the Eighth Circuit’s decision in
United States v. Moyer to be persuasive. 182 F.3d 1018 (8th
Cir. 1999). In that case, the court reasoned that when a
nurse stole morphine, she depleted the supply of morphine
and caused more to be ordered. The morphine that was
ordered traveled in interstate commerce. Under this
reasoning, when a drug is manufactured outside the state,

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No. 04-2456 5
the law of supply and demand can support a violation of
§ 1365(a). See Moyer, 182 F.3d at 1021.
Also instructive was our decision in United States v.
Cunningham, 103 F.3d 553 (7th Cir. 1996). In that case,
a nurse stole Demerol from a locked cabinet and replaced
the drug with saline. This tampering arguably occurred
after the drug had traveled in interstate commerce. The
court did not discuss the interstate commerce element
in upholding Cunningham’s conviction under § 1365, but
the case can be read to state implicitly that the timing
of the tampering is irrelevant.
Hays does not deny that he tampered with OxyContin. By
breaking pills, injecting saline, and stealing up to half of
the drugs he prescribed, he denied patients who were dying
of cancer their pain medication. Because of the prescrip-
tions he wrote to facilitate his use of the drug, pharmacies
in Illinois were required to order more OxyContin from
Minnesota to replenish their supplies. Under the supply
and demand theory, this is enough to support a violation of
§ 1365(a).
The Supreme Court has indicated that the phrase
“affecting commerce” usually “signals Congress’ intent to
exercise its Commerce Clause powers to the full.” Allied-
Bruce Terminix Co. v. Dobson, 513 U.S. 265, 273 (1995). We
find that a violation of § 1365(a) occurs whether the
tampering takes place before, during, or after the prod-
uct moves in interstate commerce. Therefore, Hays did have
real notice of the charges against him and his guilty plea
was made intelligently.

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6 No. 04-2456
B. Ineffective Assistance
Hays claims that his counsel failed to adequately ad-
vise him of the elements of the tampering charge and
that he was provided with false information about his likely
sentence. “To demonstrate prejudice arising from a guilty
plea allegedly rendered involuntary by counsel’s deficient
performance, a petitioner must establish that counsel’s
performance was objectively unreasonable and that, but for
counsel’s erroneous advice, he would not have pleaded
guilty.” Bridgeman v. United States, 229 F.3d 589, 592 (7th
Cir. 2000) (citation omitted). This test is “highly deferen-
tial” to counsel and presumes reasonable judgment and
effective trial strategy. See United States v. Scanga, 225
F.3d 780, 783-84 (7th Cir. 2000).
Hays argues that he is actually innocent of the tampering
charge and that he would not have pled guilty to it if he had
understood the elements. However, because we decline to
accept the rationale of Levine, we find that Hays’s counsel
was objectively reasonable in allowing Hays to plead guilty.
Hays claims his attorney misrepresented what his
sentence would be if he did not plead guilty. Specifically,
Hays states that his counsel told him that he should
plead guilty because the prosecutors were personally
angry with him and that they win ninety-nine percent
of their cases. He says that counsel informed him that if
he did not plead guilty to Count I, the prosecutors would
“de-stack” the charges against him and he might have
to spend ten to twenty years in prison. Hays says he
was told that if he did accept the plea agreement, he would
probably receive a very short sentence or possibly just
probation because the prosecutors would not oppose a one-
third reduction of the sentence and he would be eligible
for a drug program which would further reduce his sen-
tence.
Hays now claims that the advice given to him by coun-
sel was unsound. He argues that ten to twenty years was

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No. 04-2456 7
1 We note in passing that United States v. Booker, 125 S. Ct. 738
(2005), is not implicated in this case. See McReynolds v. United
States, No. 04-2520, 2005 WL 237642 (7th Cir. Feb. 2, 2005).
not a good faith estimate of his potential sentence and
that it was also unlikely that Hays would receive “little
to no” prison time if he pled guilty. Counsel should have
discovered that Hays was not actually eligible for the
drug program because the tampering charge was classi-
fied as a violent crime by the Bureau of Prisons. Al-
though this confusion was unfortunate, it is not enough to
prove ineffective assistance—especially when Hays’s con-
versation with the district court is taken into consideration.
The court discussed the plea and its consequences with
Hays and told him, “[Y]ou’re looking at prison time in
this case, not probation; and you understand that?” He
responded affirmatively. Judge Herndon explained at
length that the final sentencing decision would be made
by the court, not by the prosecutor or the defense attorneys.
He informed Hays that if he decided to impose a sentence
at the high end of the guideline range—closer to sixty-three
than fifty-one months—Hays would not be able to withdraw
his guilty plea.
Counsel’s advice to Hays was not objectively unreason-
able. Had Hays gone to trial, his sentence could have
been substantially higher. Because of his plea, the court
granted a three-level downward departure for acceptance of
responsibility under U.S.S.G. § 3E1.1(a), (b). Without
this departure, Hays’s sentence would have been be-
tween seventy and eighty-seven months. 1 Although it is
true that counsel and the court thought that Hays would be
eligible for a drug program, Judge Herndon made it clear at
the hearing that neither he nor the attorneys had any
control over that decision. Hays has not provided sufficient
evidence to overcome the presumption that his counsel was
effective.

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8 No. 04-2456
C. Hays’s Plea Was Voluntary
Hays contends that his plea was not voluntary because
the government threatened to add charges against him if he
did not plead guilty. The court discussed this pressure with
Hays and came to the conclusion that, although it was a
difficult decision, Hays had weighed the benefits and
decided voluntarily that pleading guilty was his best option.
The court asked Hays whether anyone attempted to
put undue pressure on him to plead guilty. The follow-
ing conversation then occurred:
Hays: I certainly feel that the Government may attack
me more vociferously on charges that probably
have not much merit, but certainly I think that
that is an action that they’ve not said so much
that they would take, but that is certainly
looming out there. It is a threat. I feel that this
is something I had to accept, yes.
. . . .
Court: Okay. So, I guess the bottom line is nobody
comes in here gladly to plead guilty. . . . So,
people come to some realization at some point
that given the circumstances, they, to use
your word, they feel like they have to do this
because of a number of things. Obviously, there
is some advantage to pleading guilty in the
sense of acceptance of responsibility saves a
person some punishment. Perhaps there is
some other reasons [sic] for accepting a plea;
might be to avoid additional charges, or what-
ever the fact of life is.
The real question I have to try to determine
here is are you doing this of your own free will?
Is this something you want to do, given the fact

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No. 04-2456 9
that you feel the constraints of the reality of the
situation, but something that you really and
truly want to do given everything, absent some
undue arm twisting or improper sort of pres-
sure?
Hays: Yes, sir. In that instance, yes, understanding
all the charges, understanding the position of
the Government, the limitations available on
this plea, the possible augmentation of charges
or sentencing or departure downward. Taking
all those things into consideration, no, sir,
nobody has quote-unquote twisted my arm to
make this plea. This is done of my own free
will.
(App. at 22-24.)
A plea agreement is constitutionally valid if it “represents
a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” United States v.
Kelly, 337 F.3d 897, 904 (7th Cir. 2003) (citing North
Carolina v. Alford, 400 U.S. 25, 31 (1970)). A trial judge has
discretion to accept a guilty plea even when the defendant
has declared his innocence as long as there is adequate
evidence of guilt. See Higgason v. Clark, 984 F.2d 203, 208
(7th Cir.), cert. denied, 508 U.S. 977 (1993). We find that
Hays’s colloquy with the court, and the evidence of guilt in
the record, establishes that his plea agreement was volun-
tary and intelligent.
III. Conclusion
Hays pled guilty to tampering with and fraudulently
possessing OxyContin. He now argues that his counsel
was ineffective and that his guilty plea was involuntary.
These claims have no merit. He had a difficult decision to
make, and he must now live with the consequences of that
decision. The denial of his § 2255 motion is AFFIRMED .

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10 No. 04-2456
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-10-05

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