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Federal Register / Vol. 86, No. 170 / Tuesday, September 7, 2021 / Notices potential of facilitating, the drug trafficking offense. Id. Applying its analysis to the facts before it, the Court concluded that the use of the firearm meets any reasonable construction of in relation to because the gun was an integral part of the transaction. Id. I
apply these conclusions of the Supreme Court as I analyze the record evidence before me.
According to the facts I already found, Respondent used the prescription pad of a doctor at her former place of employment to write a schedule II
controlled substance prescription for herself. RFAAX 4, at 910 and 13. My found facts also include that Respondents registration did not have schedule II authority. RFAAX 1, at 1. As such, for Respondent to have any chance of obtaining a schedule II
controlled substance from a pharmacy by her efforts alone, she had to present a prescription written on the prescription pad of, and purportedly signed by, a registrant with schedule II
authority. As my found facts show, Respondent had already absconded with the prescription pad of a doctor at her former place of employment and used that prescription pad to prescribe a schedule II controlled substance for herself, including forging the name of the registrant to whom the prescription pad belonged. RFAAX 4, at 910 and 13.
Under my found facts, therefore, the use of the forged prescription was an integral part of the transaction. Smith v. United States, 508 U.S. at 238. Based on the Supreme Courts explanation of in relation to, I conclude that Respondents Georgia felony forgery conviction was with reference to and as regards a controlled substance and, accordingly, I also conclude that Respondents felony forgery conviction satisfies the terms of 21 U.S.C. 824a2.
Third, prior Agency decisions have applied the felony conviction provision of 21 U.S.C. 824a2 to circumstances similar to those in this matter. See, e.g., Samuel S. Jackson, D.D.S., 72 FR
23,848, 23,852 2007 conspiracy to be an accessory after the fact; Clark G.
Triftshauser, M.D., 67 FR 71,202, 71,203
2002 criminal possession of a forged instrument; Charles A. Buscema, M.D., 59 FR 42,857, 42,858 1994 FirstDegree Felony conviction for falsifying business records about the dispensing of controlled substances, but ultimately not finding for revocation; Lambert N.
DePompei, M.D., 49 FR 37,862, 37,863
1984 possession of false or forged prescriptions are all felony convictions relating to controlled substances;
Ontario Drugs, Inc., Fullerton-Kedzie Pharmacy, Inc., 46 FR 16,004, 16,005
1981 theft and forgery of controlled
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substance prescriptions. Consequently, my finding that Respondents Georgia forgery felony guilty plea satisfies the terms of 21 U.S.C. 824a2 is consistent with Agency decisions issued in the last forty years.
For all of the above reasons, I
conclude that the found facts in this matter meet the requirements of 21
U.S.C. 824a2. Accordingly, I find that Respondent has been convicted of a felony related to any controlled substance. 21 U.S.C. 824a2.
In sum, I find that the record evidence supports two independent legal bases for the suspension or revocation of Respondents registration1 five material falsifications in three registration renewal applications and 2
Respondents conviction of a felony related to any controlled substance. 21
U.S.C. 824a1 and 2.
IV. Sanction Where, as here, the Government presented two, independent bases for the suspension or revocation of Respondents registration, and Respondent did not present evidence rebutting either of the two bases, it is then up to Respondent to assure the Administrator that she can be entrusted with the responsibilities that accompany registration. White v. Drug Enft Admin., 626 F. Appx 493, 496 5th Cir. 2015; see also Jones Total Health Care Pharmacy, LLC v. Drug Enft Admin., 881 F.3d 823, 830 11th Cir.
2018 quoting Akhtar-Zaidi v. Drug Enft Admin., 841 F.3d 707, 711 6th Cir.
2016; MacKay v. Drug Enft Admin., 664 F.3d 808, 816 10th Cir. 2011
quoting Volkman v. Drug Enft Admin., 567 F.3d 215, 222 6th Cir. 2009
quoting Hoxie v. Drug Enft Admin., 419
F.3d 477, 482 6th Cir. 2005. As the Fifth Circuit also stated, such evidence includes acceptance of responsibility and a demonstration that the . . . Respondent will not engage in future misconduct. White v. Drug Enft Admin., 626 F. Appx at 496; see also Pharmacy Doctors Enterprises, Inc.
v. Drug Enft Admin., 789 F. Appx, 724, 733 2019 citing Jones Total Health Care Pharmacy, LLC v. Drug Enft Admin., 881 F.3d at 831 citing MacKay v. Drug Enft Admin., 664 F.3d at 820
noting that past performance is the best predictor of future performance and, when a registrant has failed to comply with . . . her responsibilities in the past, it makes sense for the agency to consider whether . . . she will change . . . her behavior in the future and Alra Labs., Inc. v. Drug Enft Admin., 54
F.3d 450, 452 7th Cir. 1995 An agency rationally may conclude that
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past performance is the best predictor of future performance..
The Agency has decided that the egregiousness and extent of misconduct are significant factors in determining the appropriate sanction. Garrett Howard Smith, M.D., 83 FR 18,882, 18,910
2018 collecting cases; Samuel Mintlow, M.D., 80 FR 3630, 3652 2015
Obviously, the egregiousness and extent of a registrants misconduct are significant factors in determining the appropriate sanction.. The Agency has also considered the need to deter similar acts in the future by Respondent and by the community of registrants. Garrett Howard Smith, M.D., 83 FR 18,910;
Samuel Mintlow, M.D., 80 FR 3652.
In terms of egregiousness, the five instances of material falsification and the felony conviction go to the heart of the CSA: Non-compliance with the closed regulatory system devised to prevent the diversion of drugs from legitimate to illicit channels and not prescribing controlled substances in compliance with the applicable standard of care and in the usual course of professional practice. Gonzales v.
Raich, 545 U.S. 1, 1314, 27 2005.
These material falsifications and felony conviction alone support revocation.
Further, the uncontroverted record evidence, including Respondents admissions, shows that Respondents forgery of controlled substance prescriptions for herself spanned 2008
and 2009. Supra sections II.C., II.D., II.E., and II.F. The record evidence includes five instances of Respondents founded including negotiated and admitted or alleged forgery of a controlled substance prescription. Id.
The admittedly and allegedly forged, self-prescribed controlled substance prescriptions, Vicodin/hydrocodone 4
and Tussionex Pennkinetic 1, all include hydrocodone, a highly abused schedule II controlled substance. Supra sections II.C., II.D., and II.E. In this regard, I note Respondents sworn denials of any sort of drug abuse problem. Supra sections II.C. and II.F.
I also note, though, that Respondents current registration does not authorize her to issue schedule II controlled substance prescriptions, and that Respondent allegedly forged two, selfprescribed schedule II controlled substance prescriptions in one month.
Supra sections II.A., II.C., and II.E.
Respondents submission does not address acceptance of responsibility.
See supra section II.D. Indeed, Respondent does not even acknowledge the entirety of the OSCs charges against her. Her Written Statement begins by stating that she is writing it about material falsification of renewal
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