Pharmacist appeals sentence for drug dilution

KANSAS CITY, Mo. -- Robert Courtney has asked a federal appeals court to reduce his 30-year prison sentence for diluting chemotherapy drugs.

Courtney's attorney, J.R. Hobbs, argued in an appellate brief filed Wednesday with the 8th U.S. Circuit Court of Appeals in St. Louis that U.S. District Judge Ortrie Smith erred in giving Courtney a longer sentence than called for under federal sentencing guidelines.

Courtney was sentenced last December to 30 years in prison -- the maximum sentence possible -- after pleading guilty to 20 counts of misbranding, tampering with and adulterating cancer drugs.

Courtney's plea agreement set a sentencing range of 17 1/2 to almost 22 years. But the agreement did allow Smith to sentence Courtney to up to 30 years if he found certain factors merited the longer sentence.

The 20 counts Courtney pleaded guilty to stemmed from his dilution of 158 chemotherapy doses he prepared at his Research Medical Tower Pharmacy for 34 patients of a Kansas City doctor from March 2001 through June 2001.

But Courtney admitted in his plea agreement he began diluting drugs in 1992, affecting as many as 4,200 patients, 400 doctors and 98,000 prescriptions.

When issuing the sentence, Smith said four factors caused him to give Courtney the 30-year sentence.

Smith ruled Courtney endangered the public health, subjected his victims to extreme psychological injury and should be held responsible for crimes he admitted but was not charged with. He also said some of the counts against Courtney were incorrectly grouped together under the guidelines.

Hobbs said if the judge finds all four factors he cited were in error, Courtney should be sentenced to between 17 1/2-22 years.

However, he said it is not clear how the removal of some, but not all, of the factors would affect the sentencing.

Hobbs asked the 8th Circuit to schedule oral arguments to consider the sentencing factors.

The U.S. Attorney's office, which prosecuted Courtney, did not return phone calls from The Associated Press on Thursday.

When sentencing Courtney, Smith ruled any of the four factors justified an increased sentence. He also said some of the circumstances were considered when the federal guidelines were established, "but not to the degree present in this case."

In his filing, Hobbs argued that no evidence was admitted in the sentencing hearing to support any of the factors cited by Smith.