United States Court of Appeals

For the First Circuit

No. 21-1574

UNITED STATES OF AMERICA,

Appellee,

v.

GLENN A. CHIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Barron, Chief Judge,

Lipez and Howard, Circuit Judges.

James L. Sultan, with whom Rankin & Sultan was on brief, for 

appellant.

Christopher R. Looney, Assistant United States Attorney, with 

whom Rachael S. Rollins, United States Attorney, was on brief, for 

appellee. 

July 15, 2022
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BARRON, Chief Judge. This appeal requires us to revisit 

the sentence that Glenn Chin, a former supervising pharmacist at 

the New England Compounding Center ("NECC"), received for his 

convictions in connection with the criminal investigation into the 

deadly nationwide outbreak of fungal meningitis in 2012 that was 

traced to the company's shipments of contaminated drugs. When we 

last considered Chin's sentence, we vacated and remanded it. See

United States v. Chin, 965 F.3d 41, 60 (1st Cir. 2020) ("Chin I"). 

The United States District Court for the District of Massachusetts 

resentenced Chin while applying two sentencing enhancements under 

the United States Sentencing Guidelines ("Guidelines"). U.S.

Sent'g Guidelines Manual §§ 2B1.1(b)(16)(A), 3A1.1(b)(1)

[hereinafter U.S.S.G]. Chin contends that neither enhancement 

applies and thus that his sentence must be vacated once again. We 

affirm. 

I.

The events at NECC have already been the subject of 

several reported decisions by this Court. We thus will rehearse 

only the facts relevant to Chin's current challenge to certain 

aspects of his resentencing. We refer the reader to Chin's first 

appeal, Chin I, 965 F.3d at 45-46, and to the appeal of Barry 

Cadden, Chin's boss at NECC, United States v. Cadden, 965 F.3d 1, 

7-8 (1st Cir. 2020), for a more detailed discussion of the 

underlying facts.
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NECC was a pharmacy based in Framingham, Massachusetts,

that specialized in high-risk drug compounding, which refers to a 

process in which non-sterile ingredients are combined to create 

sterile drugs that are prepared at the request of hospitals and 

other healthcare providers. Chin worked as a licensed pharmacist 

at NECC from April 2004 to October 2012. 

In January 2010, Chin was promoted to the role of 

supervising pharmacist at NECC, in which he oversaw all drug 

production in NECC's two "clean rooms." In the fall of 2012, a 

number of patients who had received epidural injections of 

methylprednisolone acetate ("MPA") -- a steroid for pain 

relief -- contracted rare fungal infections that were ultimately 

traced back to contaminated drugs produced at NECC under Chin's 

supervision. A number of those patients died.

A federal criminal investigation into NECC's practices 

ensued, and in connection with it Chin was charged in December of 

2014 with "racketeering in violation of 18 U.S.C. § 1962(c); 

racketeering conspiracy in violation of 18 U.S.C. § 1962(d); 

forty-three counts of federal mail fraud in violation of 18 U.S.C. 

§ 1341; and thirty-two counts of violating the Federal Food, Drug, 

and Cosmetic Act ('FDCA'), see 21 U.S.C. §§ 331(a), 333(a)." Chin 

I, 965 F.3d at 45. After a jury trial, Chin was found guilty on 

all counts. Id. at 46.
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Evidence was introduced at trial that showed that Chin 

was familiar with Chapter 797 of the United States Pharmacopeia 

("USP-797"), which sets forth standards governing sterile 

compounding that pharmacists licensed in Massachusetts must 

follow. Evidence introduced at trial also supportably showed that, 

despite NECC claiming to be USP-797 compliant, Chin knew that NECC 

was selling MPA that had not been properly sterilized or tested 

for sterility in accordance with USP-797. And, evidence was 

introduced at trial that showed that NECC's clean room became 

grossly contaminated with mold and bacteria after Chin instructed 

clean room staff to ignore cleaning protocols, and that Chin knew 

of this contamination.

At Chin's sentencing in January 2018, the government, 

among other things, requested that the District Court apply the 

two Guidelines that set forth the enhancements that are the subject 

of Chin's present appeal. The first enhancement is U.S.S.G. 

§ 2B1.1(b)(16)(A), which imposes a two-level increase in the base 

offense level of those convicted of certain crimes "[i]f the 

offense involved . . . the conscious or reckless risk of death or 

serious bodily injury." The second enhancement is U.S.S.G.

§ 3A1.1(b), which imposes a two-level increase in the base offense 

level "[i]f the defendant knew or should have known that a victim 

of the offense was a vulnerable victim" and an additional two-
- 5 -

level increase if that enhancement applies and "the offense 

involved a large number of vulnerable victims."

The District Court declined to apply either enhancement 

in sentencing Chin to a term of imprisonment of 96 months, to be 

followed by two years of supervised release. The District Court 

determined at Chin's first sentencing that the "conscious or 

reckless risk" enhancement did not apply because "the evidence did 

not establish a reckless and knowing disregard of a reasonable

certainty of causing death or great bodily harm." The District 

Court determined that the "vulnerable victim" enhancement did not 

apply because "here the victims that were identified were the 

clinics and the hospitals who purchased the drugs," and "because 

we construe 'victim' differently for purposes of sentencing, the 

enhancements do not apply on a proximate cause theory to persons 

who were not recipients of NECC's representations" -- that is, the 

individuals who were ultimately harmed by injections of tainted 

pharmaceuticals from NECC.

The government appealed the sentence that the District

Court had imposed. It did so, in part, on the ground that the 

District Court erred in not applying either enhancement.

On appeal, this Court rejected the District Court's 

basis for determining that the "conscious or reckless risk" 

enhancement did not apply. Chin I, 965 F.3d at 53. We first 

explained that the District Court failed to consider whether Chin's 
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"relevant conduct," rather than the nature of his "offense" alone, 

carried with it the risk of death or serious bodily injury. Id.

at 52–53. We further explained that the District Court erred 

because it

found that Chin did not act with a 

"reckless and knowing" state of mind in 

disregarding a "reasonable certainty of 

. . . death or great bodily harm." The 

sentencing enhancement, however, describes 

the requisite mental state using disjunctive 

language: the enhancement applies so long as 

the defendant acted in spite of either a 

"conscious or reckless risk." U.S.S.G. 

§ 2B1.1(b)(16)(A) (emphasis added). Thus, the 

District Court's finding does not foreclose 

the possibility that Chin's offense involved 

the mental state necessary for the 

enhancement's application. We therefore 

vacate and remand the sentence for the 

District Court to assess whether any of Chin's 

relevant conduct, as defined under U.S.S.G. 

§ 1B1.3(a), "involved . . . the conscious or 

reckless risk of death or serious bodily 

injury." Id. § 2B1.1(b)(16).

Id. at 53 (omissions in original).

Chin I was published on the same day as Cadden, and it 

referenced the Cadden opinion in its analysis of the "conscious or 

reckless risk" issue. See Chin I, 965 F.3d at 52. Cadden similarly 

vacated the District Court's refusal to apply this enhancement to 

Cadden and remanded for the court to consider the proper mens rea 

for the § 2B1.1(b)(16)(A) enhancement. We explained that

the District Court . . . at no point directly 

addressed in sentencing whether a 
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preponderance of the evidence . . . 

established that Cadden's relevant conduct 

associated with the mail fraud involved a 

"conscious or reckless risk of death or 

serious bodily injury." U.S.S.G. 

§ 2B1.1(b)(16); Cf. United States v. Lucien, 

347 F.3d 45, 56-57 (2d Cir. 2003) 

(concluding that a conscious risk is one 

"known to the defendant" while a reckless risk 

is "the type of risk that is obvious to a 

reasonable person and for which disregard of 

said risk represents a gross deviation from 

what a reasonable person would do").

965 F.3d 1, 34–35.

In Chin I, this Court also rejected the District Court's 

basis for determining that the "vulnerable victim" enhancement did 

not apply. We explained in doing so that, "'[t]o come within the 

guidelines' definition' of 'victim,' 'one need not be a victim of 

the charged offense so long as one is a victim of the defendant's 

other relevant conduct.'" 965 F.3d at 54 (alteration in original) 

(quoting Cadden, 965 F.3d at 35). Moreover, in Chin I, with 

respect to whether Chin's particular conduct warranted the 

enhancement, we framed the question on remand with reference to 

commentary in the Guidelines. Specifically, we stated, "[w]e 

. . . leave it to the District Court in the first instance to 

address, among other things, whether [Chin's] actions were 

analogous to those of a fraudster who 'market[s] an 

ineffective cancer cure,' who the Guidelines indicate would merit 
- 8 -

the enhancement, U.S.S.G. § 3A1.1 cmt. n.2." Chin I, 965 F.3d at 

54.

Following this Court's decisions in Cadden and Chin I, 

Cadden was resentenced on July 7, 2021. Chin was resentenced the 

next day by the same judge who had resentenced Cadden and who had 

previously sentenced both men. 

At Cadden's resentencing, the District Court observed 

that, at the first sentencing, it had treated the applicable mens 

rea standard as "not recklessness in the tort law sense but in the 

appreciably stricter criminal law sense, requiring actual 

knowledge of an impending harm easily preventable." But, the 

District Court noted in resentencing Cadden, "[i]t's clear rather 

from the decision in Mr. Cadden's case that the First Circuit has 

adopted the Second Circuit's definition [in Lucien, 347 F.3d at 

56-57], which is a quite different definition of recklessness." 

The District Court then quoted the definition of recklessness from 

Lucien: "the type of risk that is obvious to a reasonable person 

and for which disregard of said risk represents a gross deviation 

from what a reasonable person would do," Lucien, 347 F.3d at 56-

57.

In assessing whether the enhancement applied to Cadden, 

the District Court found that Cadden "preside[d] over" a "highrisk enterprise" at NECC and did so
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despite warnings, signals, . . . incomplete 

testing, falsification of drug lab cleaning 

reports, . . . the appearance of mold and 

other contaminants in the clean room, and his 

superior knowledge of the risk involved[.] I 

have to conclude that [Cadden's] conduct did 

and does fit within the definition of 

"recklessness."

The District Court then applied the enhancement to Cadden.

Chin was resentenced by the District Court the day after 

Cadden was. The District Court declared in resentencing Chin, "I 

do not want to retread ground that I covered yesterday. . . . . I 

assume [the First Circuit's quotation of Lucien in Cadden] meant 

they were adopting or at least embracing the Second Circuit's view 

of how 'recklessness' would be defined in this case." The District 

Court then held the "conscious or reckless risk" enhancement 

applicable to Chin.

In addition, at Cadden's resentencing, the District 

Court noted that, in light of the First Circuit's ruling in 

Cadden's first appeal, "'victims' [are] defined . . . by the larger 

picture of [an offender's] conduct as a whole," and that "any 

person who entrusts medical personnel to inject a foreign substance 

into their spine by definition fits what I would think, and 

ordinary people would think, is a definition of being in a 

vulnerable position." The District Court then applied the 

"vulnerable victim" enhancement to Cadden. 
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At Chin's resentencing, the District Court observed that 

the "First Circuit['s] . . . expansive view of what constitutes a 

'victim' under the Guidelines was pretty clear to me," and that 

"vulnerability can . . . refer to one's . . . inability to protect 

one's self under the circumstances." The District Court then held 

the "vulnerable victim" enhancement applicable to Chin as well.

After applying both the "conscious or reckless risk" and 

"vulnerable victim" enhancements to Chin, the District Court 

determined that Chin's total offense level was 34. Given that the 

District Court determined that Chin's Criminal History Category 

was I, the District Court calculated his Guidelines Sentencing 

Range to be a term of imprisonment of 151–188 months. The District 

Court thereafter imposed a 126-month term of imprisonment and two 

years of supervised release. Chin timely appeals. "[W]e review 

the District Court's 'factfinding for clear error and afford de 

novo consideration to its interpretation and application of the 

sentencing guidelines.'" Chin I, 965 F.3d at 50 (quoting United 

States v. Benítez-Beltrán, 892 F.3d 462, 469 (1st Cir. 2018)).

II.

We start with Chin's challenge to the District Court's 

application of the two-level enhancement set forth in U.S.S.G. 

§ 2B1.1(b)(16)(A). We are not persuaded by it.
- 11 -

A.

Chin first argues that the District Court erred in 

interpreting § 2B1.1(b)(16)(A). He contends that is so because 

the District Court held the enhancement to apply so long as there 

is proof that the offense, including the defendant's relevant 

conduct, involved a risk of death or serious bodily injury of which 

the defendant should have been aware and thus to apply even in the 

absence of proof by a preponderance of the evidence that the 

defendant in fact knew of that risk.

Chin contends in support of that argument that the 

District Court based its "should have known" interpretation of the 

enhancement solely on our invocation in the course of construing 

that same provision of the Guidelines in Cadden of the Second 

Circuit's decision in Lucien. He goes on to contend, however, 

that "it is not at all clear from this Court's 'Cf.' citation to 

Lucien that it was adopting that particular definition of 'reckless 

risk.'"

Chin further argues that, given that we did not hold in 

Cadden that Lucien controls, we must construe the enhancement 

afresh. And, he contends, by virtue of the use of the word 

"reckless" in § 2B1.1(b)(16)(A), the enhancement is properly 

construed to require proof that a defendant was aware that his 

relevant conduct in committing his offense created a risk of death 

or serious bodily injury and not merely that he should have known 
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of that risk. He then contends that, in consequence, the 

enhancement cannot be applied to him, because the government did 

not prove by a preponderance of the evidence that Chin was aware 

of any such risk in engaging in the conduct relevant to his 

offense.

We agree with Chin that the "Cf." citation to Lucien in 

our Cadden decision, 965 F.3d at 34–35, does not resolve how this 

enhancement must be construed. We did not have occasion in Cadden

to address the meaning of the word "reckless" in the enhancement. 

Our focus there was solely on the District Court's failure to 

address Cadden's "relevant conduct" in applying the enhancement 

as § 1B1.1 cmt. n.1(I) of the Guidelines requires, given that the 

District Court appeared to focus in assessing whether the 

enhancement applied on the nature of the offenses of which Cadden 

had been convicted. See Cadden, 965 F.3d at 34; U.S.S.G. § 1B1.1 

cmt. n.1(I) (defining "offense"); id. § 1B1.3(a)(1)(A) (setting 

forth "relevant conduct" for purposes of computing base offense 

level, offense characteristics, and adjustments). But, even 

though Cadden's invocation of Lucien is not controlling of the 

question presented here, we nonetheless conclude that the 

enhancement is best construed as Lucien construed it.

 The Guideline refers to a "conscious or reckless 

risk." U.S.S.G. § 2B1.1(b)(16)(A) (emphasis added). If we were 

to read "reckless" in this Guideline itself to require a defendant 
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to be aware of the risk of death or substantial bodily injury, as 

Chin contends we must, the use of the words "conscious or" in that 

same Guideline would be superfluous. See United States v. DeLuca, 

17 F.3d 6, 10 (1st Cir. 1994) ("'[A]ll words and provisions of 

statutes are intended to have meaning and are to be given effect, 

and no construction should be adopted which would render statutory 

words or phrases meaningless, redundant or superfluous.' We think 

that this principle is fully applicable to the 

sentencing guidelines . . . ." (internal citations omitted) 

(quoting Lamore v. Ives, 977 F.2d 713, 716–17 (1st Cir. 1992))).

Nor can this redundancy be avoided, as Chin suggests, by 

"requiring the government to prove, at the very least, what amounts 

to willful blindness" to prove recklessness. "Willful blindness 

serves as an alternate theory on which the government may prove 

knowledge." United States v. Pérez-Meléndez, 599 F.3d 31, 41 (1st 

Cir. 2010).

In construing the Guideline to require proof only that 

the risk would have been obvious to a reasonable person in Chin's 

position, we align ourselves not only with the Second Circuit 

decision in Lucien, but with the Ninth and Tenth Circuits too. 

See United States v. Maestas, 642 F.3d 1315, 1321 (10th Cir. 2011) 

("[A] defendant’s conduct involves a conscious risk if the 

defendant was subjectively aware that his or her conduct created 

a risk of serious bodily injury, and a defendant’s conduct involves 
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a reckless risk if the risk of bodily injury would have been 

obvious to a reasonable person."); United States v. Johansson, 249 

F.3d 848, 859 (9th Cir. 2001) ("We do not believe that a defendant 

can escape the application of the serious risk of injury 

enhancement by claiming that he was not aware that his conduct 

created a serious risk, that is, a defendant does not have to 

subjectively know that his conduct created the risk."). And while 

Chin is right that two courts of appeals have ruled to the contrary 

and interpreted § 2B1.1(b)(16)(A) to require actual, subjective 

awareness of a risk, see United States v. Mohsin, 904 F.3d 580, 

586 (7th Cir. 2018); United States v. McCord, Inc., 143 F.3d 1095, 

1098 (8th Cir. 1998), neither of those courts explains how that 

interpretation accords with the enhancement's use of the words 

"conscious or" before "reckless." See Johansson, 249 F.3d at 858 

("Our concern with the Eighth Circuit's interpretation of 

'reckless' [in McCord] . . . is that there is no meaningful 

distinction between an offense that involves the 'conscious' risk 

of injury, and an offense that involves the 'reckless' risk of 

injury, if under either prong the defendant must have been aware 

of the risk in the first place."); accord Maestas, 642 F.3d at 

1320-21.1 

1 Chin does also point to the Eleventh Circuit's decision in 

United States v. Mateos, 623 F.3d 1350 (11th Cir. 2010), which 

applied the enhancement on the ground that the sentencing court 

had "f[ound] that a trained nurse, such as [the defendant] . . ., 
- 15 -

Chin does point out that, although neither 

§ 2B1.1(b)(16)(A) nor its application notes define the term 

"reckless," a definition of that word does appear elsewhere in the 

Guidelines. He then argues that we thus must apply that definition 

of "reckless" here. 

Chin has in mind the definition of "reckless" that 

appears in the application notes to the Guideline that concerns 

involuntary manslaughter. See U.S.S.G. § 2A1.4. That Guideline 

sets different base offense levels for involuntary manslaughter 

depending on whether "the offense involved criminally negligent 

conduct; or . . . the offense involved reckless conduct; or . . . 

the offense involved the reckless operation of a means of 

transportation." Id. The application note to that Guideline, in 

turn, defines "reckless" as follows:

"Reckless" means a situation in which the 

defendant was aware of the risk created by his 

conduct and the risk was of such a nature and 

degree that to disregard that risk constituted 

a gross deviation from the standard of care 

that a reasonable person would exercise in 

such a situation.

would be well aware" of the risks associated with her criminal 

activity, id. at 1371. But, as the government observes, this 

standard more closely resembles a should-have-known standard than 

an actual awareness standard. Moreover, insofar as the Eleventh 

Circuit meant to embrace an actual-awareness-of-risk requirement 

in Mateos, see id. ("the Guidelines provision focuses on the 

defendant's disregard of risk"), it, too, made no attempt to 

explain how such a requirement could be reconciled with the 

Guideline's text.
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Id. § 2A1.4 cmt. n.1. The application note also explains that 

"'[c]riminally negligent' means conduct that involves a gross 

deviation from the standard of care that a reasonable person would 

exercise under the circumstances, but which is not reckless." Id.

But, the application note that sets forth this 

definition of "reckless" in connection with the Guideline that 

concerns involuntary manslaughter does not purport to apply 

throughout the Guidelines. Nor does it even purport to apply to 

the Guideline at issue here in particular, which applies to fraud 

and certain related offenses. Thus, the application note does 

not, by its terms, require us to apply the definition of "reckless" 

that it sets forth here. 

Moreover, it is problematic to apply that definition 

here as a textual matter. The definition of "reckless" in the 

involuntary manslaughter Guideline refers to a "risk." See

U.S.S.G. § 2A1.4 cmt. n.1. It is thus hard to see how that 

definition could have been intended to apply to this Guideline, 

because this Guideline itself uses the word "reckless" to modify 

the word "risk." No such awkwardness arises under the involuntary 

manslaughter Guideline; it uses the adjective "reckless" to 

describe a defendant's conduct -- either "reckless conduct" or 

"reckless operation of a means of transportation," U.S.S.G. 

§ 2A1.4. See Maestas, 642 F.3d at 1321 (observing the distinction 
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between the two Guidelines' respective uses of "reckless conduct" 

and "reckless risk"); Johansson, 249 F.3d at 859 ("The Guideline 

describes a 'reckless risk,' not a reckless disregard of a known 

risk.").2

Chin separately argues that -- the definition of 

"reckless" elsewhere in the Guidelines aside -- the term as it 

appears in the enhancement at issue here is best construed to 

require the defendant to be aware of the risk of death or serious 

bodily injury. He relies for this contention in part on other 

instances in which recklessness has been defined to require a 

2 Chin draws our attention to a case in which this Court 

relied on the definition of "reckless" from the involuntary 

manslaughter Guideline when interpreting a third Guideline's use 

of that word. See United States v. Carrero-Hernández, 643 F.3d 

344, 348–50 (1st Cir. 2011). There, this Court was tasked with 

interpreting a Guideline that provided for an increased offense 

level "if the defendant recklessly created a substantial risk of 

death or serious bodily injury to another person in the course of 

fleeing from a law enforcement officer," U.S.S.G. § 3C1.2, whose 

application note expressly imported the definition of "reckless" 

from the Guideline on involuntary manslaughter, id. cmt. n.2; see 

also Carrero-Hernández, 643 F.3d at 348. But, even setting aside 

the fact that in that case -- unlike this one -- the Guideline in 

question expressly incorporated the definition of "reckless" set 

out in the application note to § 2A1.4, Carrero-Hernández

illustrates why the text of Chin's enhancement compels a different 

construction of the word "reckless." The provision at issue in 

Carrero-Hernández, like the involuntary manslaughter Guideline, 

used "reckless[]" to describe how an offender engaged in risky 

conduct. See U.S.S.G. § 3C1.2 ("If the defendant recklessly 

created a substantial risk . . ."); id. § 2A1.4 ("if the offense 

involved reckless conduct . . ."). By contrast, as we have 

explained, "reckless" in § 2B1.1(b)(16)(A) describes expressly a 

"risk," not the way an offender conducted himself with respect to 

that risk. See id. § 2B1.1(b)(16)(A).
- 18 -

defendant's subjective awareness of a risk. See Voisine v. United 

States, 579 U.S. 686, 694, 699 (2016) (describing reckless conduct 

as "acts undertaken with awareness of their substantial risk of 

causing injury" and "with conscious disregard of a substantial 

risk of harm"); Farmer v. Brennan, 511 U.S. 825, 836–37 (1994) 

("The criminal law . . . generally permits a finding of 

recklessness only when a person disregards a risk of harm of which 

he is aware."). 

But, in those instances, the term defines the mens rea 

element of a criminal offense, see Voisine, 579 U.S. at 691; 

Farmer, 511 U.S. at 836–37, which must be proved beyond a 

reasonable doubt.3 Here, however, the term appears in a sentencing 

enhancement, which is subject only to the lower preponderance of 

the evidence standard that also applies in the civil context. See

United States v. Hernández-Negrón, 21 F.4th 19, 25-26 (1st Cir. 

2021). Thus, the examples of "reckless" being given the stricter 

meaning on which Chin relies fail to show that this Guideline is 

best construed to incorporate a meaning of "reckless" that is used 

to define an element of a crime, rather than a meaning of 

3 Farmer was a civil Bivens action in which the Court held 

that "deliberate indifference," for the purposes of defining a 

violation of the Eighth Amendment, see Helling v. McKinney, 509 

U.S. 25, 32 (1993), required actual knowledge and disregard of a 

risk, rather than merely an objective risk. 511 U.S. at 837, 839–

40. The Court explained in so holding, however, that it was 

"adopt[ing]" what it called "subjective recklessness as used in 

the criminal law." Id. at 839–40.
- 19 -

"reckless" that is traditionally used in the civil context, which 

is the one the Second Circuit attributes to it in Lucien, 347 F.3d 

at 56-57. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 68 

(2007) ("While 'the term recklessness is not self-defining,' the 

common law has generally understood it in the sphere of civil 

liability as conduct violating an objective standard: action 

entailing 'an unjustifiably high risk of harm that is either known 

or so obvious that it should be known.'" (quoting Farmer, 511 U.S. 

at 836)); see also id. at 68 n.18 ("Unlike civil recklessness, 

criminal recklessness also requires subjective knowledge on the 

part of the offender.").

We do not mean to suggest that the word "reckless" in a 

Guideline necessarily incorporates the traditional common-law 

understanding of the term in the civil context. But, given the 

use of the words "conscious or reckless" to modify risk in 

§ 2B1.1(b)(16)(A), the text requires us to construe "reckless" 

here to refer to that standard. 

B.

Chin argues in the alternative that the record fails to 

show by a preponderance of the evidence that his relevant conduct 

satisfied the objective standard for recklessness, even if that 

standard is the applicable one under this Guideline. Specifically, 

he contends that "[w]hile [he] was aware that there were 

deficiencies in testing and the condition of the compounding lab 
- 20 -

. . ., it would have required rank speculation to foresee that 

those shortcomings would cause the vials of MPA to become 

contaminated with fungus, leading to a scourge of serious illness 

and death." We are not persuaded.

The District Court did not expressly set forth findings 

about the nature of the risk of which Chin should have been aware 

from his relevant conduct in committing his offense. However, we 

may look to the record of the sentencing hearing to ascertain the 

District Court's reasoning. Cf. United States v. Montero-Montero, 

817 F.3d 35, 37 (1st Cir. 2016) ("To be sure, a sentencing court's 

rationale sometimes may be inferred from the sentencing colloquy 

and the parties' arguments (oral or written) in connection with 

sentencing."). 

Notably, before applying the § 2B1.1(b)(16)(A)

enhancement to Chin, the District Court explained that it "d[id] 

not want to retread ground that [it] covered yesterday." It is 

thus evident that the District Court was relying on the same 

rationale for applying this enhancement to Chin that it had relied 

on the day before in applying the enhancement to Cadden. And, at 

Cadden's resentencing, it had explained that the enhancement 

applied to Cadden because Cadden "preside[d] over" a "high-risk 

enterprise" at NECC

despite warnings, signals, . . . incomplete 

testing, falsification of drug lab cleaning 

reports, . . . the appearance of mold and 
- 21 -

other contaminants in the clean room, and his 

superior knowledge of the risk involved.

Of course, the record in Chin's case must provide support 

for the District Court's decision to apply the enhancement to him 

based on this same rationale. But, reviewing the District Court’s 

factfinding for clear error, Chin I, 965 F.3d at 50, we conclude 

that the record here supportably shows that Chin knew in 2012 that 

NECC's clean room was grossly contaminated after his staff's 

failure to adhere to cleaning protocols, that he knew that NECC 

was selling MPA that was not properly sterilized or tested for 

sterility despite claiming that it was USP-797 compliant, and that 

he instructed NECC technicians to mislabel untested drugs with the 

lot numbers of older lots that NECC had tested. And, as the 

government points out, the record also supportably shows that Chin 

was required to follow USP-797 standards, the purpose of which "is 

to describe conditions and practices to prevent harm, including 

death, to patients that could result from . . . microbial 

contamination." Thus, the District Court did not clearly err in 

finding that Chin should have been aware of the risk of death or 

serious bodily injury that his conduct in committing his offense 

posed, given the evidence supportably showing that he breached 

USP-797 standards that exist in part to "prevent 

. . . death . . . to patients." 
- 22 -

III.

We next address Chin's contention that the District 

Court erred in applying an enhancement to his sentence that 

provides for a two-level increase "[i]f 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).4 The application note further 

explains that the enhancement "applies to offenses involving an 

unusually vulnerable victim." Id. § 3A1.1 cmt. n.2. To apply the 

"vulnerable victim" enhancement, "the sentencing court must 

determine that (1) 'the victim of the crime was vulnerable, that 

is, . . . the victim had an "impaired capacity . . . to detect or 

prevent crime;"' and (2) 'the defendant knew or should have known

of the victim's unusual vulnerability.'" United States v. Stella, 

591 F.3d 23, 29 (1st Cir. 2009) (quoting United States v. 

Donnelly, 370 F.3d 87, 92 (1st Cir. 2004)). 

Chin does not dispute that the patients who were 

administered NECC drugs are "victims" in the relevant sense. See

United States v. Bradley, 644 F.3d 1213, 1288 (11th Cir. 2011) 

(concluding that "recipients of recycled blood-derivatives are 

4 U.S.S.G. § 3A1.1(b)(2) provides, "[i]f (A) subdivision (1) 

applies; and (B) the offense involved a large number of vulnerable 

victims, increase the offense level determined under subdivision 

(1) by 2 additional levels." The District Court applied this 

enhancement at Chin's resentencing. Chin does not argue that the 

District Court erred in applying the additional enhancement in 

§ 3A1.1(b)(2) if the District Court properly applied the 

enhancement in § 3A1.1(b)(1).
- 23 -

'vulnerable victims'" where owner of pharmaceutical wholesaler's 

fraudulent billing scheme caused AIDS and hemophilia patients to 

be treated with recycled blood derivatives); United States v. 

Milstein, 401 F.3d 53, 74 (2d Cir. 2005) (affirming application of 

"vulnerable victims" enhancement where defendant "distribute[d] 

counterfeit and misbranded drugs to doctors, pharmacists, and 

pharmaceutical wholesalers, knowing that those customers would 

distribute the drugs to women with fertility problems and 

to Parkinson's disease patients"); see also United States v. 

Sidhu, 130 F.3d 644, 655 (5th Cir. 1997) ("[A] physician's patients 

can be victimized by a fraudulent billing scheme directed at 

insurers or other health care providers."). But, he still argues 

that neither prong of the enhancement is satisfied here. Reviewing 

the District Court's factfinding for clear error and its 

interpretation of the Guidelines de novo, Chin I, 965 F.3d at 50, 

we do not agree.

A.

Chin contends that the victims here -- i.e., the patients 

harmed by contaminated NECC drugs -- "were not 'unusually 

vulnerable'" merely because they were members of "a generic class 

of all medical patients." He further contends that such a finding 

would be inconsistent with the intent and purpose of the Guideline, 

which he says is meant to punish "defendants who exploit the 

particular weaknesses of society's most vulnerable members." To 
- 24 -

the extent Chin contends that the District Court erred in its 

interpretation and application of the Guideline, we disagree under 

de novo review. To the extent he challenges the District Court's 

factual finding that the victims at issue were in fact "unusually 

vulnerable," we discern no clear error. 

The District Court did not find, as Chin suggests, that 

these victims were unusually vulnerable merely because they 

belonged to "a generic class of all medical patients." Rather, 

the District Court supportably found that they were unusually 

vulnerable because their pain led them to "entrust medical 

personnel to inject a foreign substance into their spine[s],"

recognizing that "vulnerability can equally refer to one's . . .

inability to protect one's self under the circumstances." Applying 

the enhancement based on particularized class characteristics such 

as these is consistent with our precedent. Although we have said

that the sentencing court should focus "on the victim's individual 

characteristics" in applying this enhancement, "above and beyond 

mere membership in a large class," see United States v. Feldman, 

83 F.3d 9, 15 (1st Cir. 1996), we have also made clear that "this 

is in no way a fixed rule," United States v. Gill, 99 F.3d 484, 

486-87 (1st Cir. 1996). Indeed, "[i]n some cases the inference to 

be drawn from the class characteristics may be so powerful that 

there can be little doubt about unusual vulnerability of class 

members within the meaning of section 3A1.1." Id. at 487 (citing 
- 25 -

United States v. Echevarria, 33 F.3d 175, 180-81 (2d Cir. 1994) 

(upholding enhancement as applied to unlicensed doctor based on 

group determination of vulnerability of medical patients), 

superseded by regulation on other grounds as stated in United 

States v. Hussey, 254 F.3d 428, 433 n.3 (2d Cir. 2001), and United 

States v. Bachynsky, 949 F.2d 722, 735 (5th Cir. 1991) (same, as 

applied to physician making false diagnoses)). Thus, reviewing de 

novo, we conclude that the District Court did not err in 

interpreting the Guideline.

Nor do we find any clear error in the District Court's 

application of the Guideline to Chin. Indeed, we have upheld the 

application of the enhancement in similar circumstances: in 

Stella, we held that victims' "illnesses" can distinguish them 

from members of the "general public" for purposes of the 

vulnerable-victim enhancement, insofar as their need for 

medication vitiates their ability to "help themselves" or "to 

detect or prevent against the [relevant harm]." 591 F.3d at 30

(quoting the sentencing court's findings). Cf. Bradley, 644 F.3d 

at 1289 (concluding that victims "were vulnerable due to their 

medical condition -- AIDS and hemophilia"); Milstein, 401 F.3d at 

74 (concluding that "women with fertility problems and . . . 

Parkinson's disease patients" constituted vulnerable victims). 

Here, the patients receiving MPA injections into their spine were 

in a similarly "unusually vulnerable" position, see U.S.S.G. 
- 26 -

§ 3A1.1 cmt. n.2, by virtue of their physical condition and the 

circumstances of the procedure. Thus, we discern no error in the 

District Court's application of the enhancement.

B.

Chin also argues that the record fails to show that Chin 

knew or should have known of the victims' unusual vulnerability. 

In support of this contention, Chin appears to argue that the "knew 

or should have known" requirement in § 3A1.1(b) per se precludes 

the enhancement's application to him because he was merely a 

supplier of medical products to health care facilities and thus 

stood at a remove from the patients who were harmed by the 

contaminated drugs that NECC compounded. But, insofar as Chin in 

pressing this contention is making a legal argument about the 

proper construction of the Guideline, such that our review is de 

novo, see Chin I, 965 F.3d at 50, we must reject the contention. 

Nothing in the text of the provision supports the per se 

exclusion of medical suppliers. Thus, nothing in the text bars 

the application of the enhancement to a medical supplier who knew 

or should have known that he was distributing unsafe drugs that 

would be used by vulnerable patients. See Bradley, 644 F.3d at 

1289; Milstein, 401 F.3d at 74; see also United States v. Moran, 

778 F.3d 942, 952–53, 978–79 (11th Cir. 2015) (applying "vulnerable 

victim" enhancement to defendant CEO of medical facility who was

not directly involved in patient care). Rather, the text merely 
- 27 -

provides that the enhancement applies to an offender who "knew or 

should have known that a victim of the offense was a vulnerable 

victim." U.S.S.G. § 3A1.1(b).

Chin next argues that the enhancement may not be applied 

to him by referencing the application note to it. The application 

note explains that "[t]he adjustment would apply, for example, in 

a fraud case in which the defendant marketed an ineffective cancer 

cure." U.S.S.G. § 3A1.1 cmt. n.2. Chin contends that, in addition 

to the fact that he was not himself "a health care provider," he 

also is not analogous to a fraudster who marketed an ineffective 

cancer cure. And that is so, Chin contends, because NECC had 

previously sold lots of MPA without incident, and the record fails 

to show by a preponderance of the evidence that he "kn[e]w that 

any of the drugs he compounded were contaminated." He thus appears 

to be contending that, absent a showing by a preponderance of the 

evidence of his intent to defraud the victims, there can be no 

finding that Chin knew or should have known that the victims were 

vulnerable. 

But, even if we understand this argument to be a 

contention about the proper way to construe the Guideline, such 

that our review is de novo rather than for clear error, Chin I, 

965 F.3d at 50, we reject it. The text of the Guideline provides 

no basis for concluding that the "knew or should have known" 

standard may be satisfied only by a finding that the defendant 
- 28 -

intended to defraud his victims. Nor does the application note, 

in giving an example of how the Guideline could be satisfied, 

purport to suggest that there is a requirement to prove an intent 

to defraud. Instead, the Guideline merely requires that it be 

shown by a preponderance of the evidence that, in engaging in the 

conduct relevant to his offense, Chin knew or should have known 

that vulnerable patients would be using the unsafe drugs he 

produced at NECC.

Finally, Chin appears to be arguing that, even if the 

Guideline may be applied to a medical supplier who was not 

defrauding patients, the District Court clearly erred in finding 

that he "knew or should have known" that the victims were 

vulnerable. Here, his assertion is that there is an absence of 

record evidence of his individualized knowledge of both who the 

end users of NECC drugs would be and that the drugs that NECC 

shipped were contaminated. But, we cannot agree. 

The District Court supportably found that "[e]vidence 

introduced at trial, including internal NECC emails, brought home 

the certainty that Chin and other of the coconspirators were fully 

aware of the risks involved in the distribution of defective 

drugs." Chin's resume advertised his "[k]nowledge of USP[-]797," 

and the first sentence of the introduction to USP-797 reads, "[t]he 

objective of this chapter is to describe conditions and practices 

to prevent harm, including death, to patients that could result 
- 29 -

from . . . microbial contamination . . . ." And, Chin himself 

concedes in his brief to us that he "was aware that there were 

deficiencies in testing and the condition of the compounding lab 

and that all the USP-797 protocols were not being strictly adhered 

to." Indeed, evidence was presented at trial that tended to show 

that Chin was aware of the particularly grave risks associated 

with injecting contaminated medication into a patient's spinal 

fluid, as opposed to other routes of drug administration.5 Thus, 

the District Court did not clearly err in concluding that Chin 

knew or should have known that downstream recipients of MPA from 

NECC were particularly vulnerable.

IV.

For the foregoing reasons, we affirm Chin's sentence.

5 An NECC compounding technician testified that Chin, when 

training him in clean-room sanitation practices, "stressed that 

with the injectable drugs [there] was even more a need to be 

vigilant in terms of cleanliness because you're bypassing the 

immune system, basically injecting it right into the cerebral 

spinal fluid, whatever it is, and it's going to go straight up 

into their brain." Additionally, the second sentence of the 

introduction to USP-797 explains that "[c]ontaminated [compounded 

sterile preparations] are potentially most hazardous to patients 

when administered into body cavities, central nervous and vascular 

systems, eyes, and joints and when used as baths for live organs 

and tissues."