SALT LAKE CITY -- Prosecutors will be asking for a 20-year sentence at Monday's sentencing of Brigham City doctor Dewey MacKay, despite a recommendation for 30.
MacKay, 64, was convicted Aug. 18 on 40 of 86 counts of illegally prescribing painkillers.
A sentencing memorandum filed Thursday in federal court by the U.S. Attorney's Office for Utah reads, "The government advises the Court that its position at sentencing will be that a sentence of 240 months, the mandatory minimum sentence, is a reasonable sentence in view of all the factors."
In the memorandum, Assistant U.S. Attorney Michael Kennedy, the lead prosecutor at MacKay's five-week trial, notes that the federal Probation Office prepared a presentence report that recommends up to 30 years and five months as a possible sentence.
The low end of the guideline range suggested in the report is 292 months, or 24 years, four months.
Nonetheless, the prosecution's memorandum depicts MacKay as no better than a curbside drug dealer.
"The minimum mandatory sentence for this offense is applied across the board to all defendants convicted of the same crime as the defendant, without respect to whether the drug involved was a 'street' drug such as methamphetamine or cocaine, or a prescription drug such as Oxycodone, as in this case," according to the memorandum.
"It also applies evenly to anyone who commits the crime, whether as a street dealer or as a physician acting outside the bounds of professional practice. The government avers (declares) that this is as it should be -- there is no functional difference between the defendant's conduct in this case and that of a street dealer of heroin or stolen Oxycodone."
MacKay's lead defense counsel, Peter Stirba, has called the 20-year sentence MacKay faces "disproportionate" and earlier this week announced the case would be appealed.
He also said a big part of Monday's sentencing hearing will turn on the question of whether MacKay should remain free pending the appeal.
"In this case, we have exceedingly meritorious arguments that Doctor MacKay should be released pending appeal," Stirba said, declining to elaborate.
But the prosecution memorandum said the 2006 overdose death of one of MacKay's patients, Ogden resident David Wirick, 55, a rocket scientist at ATK, by itself warrants the 20-year imprisonment.
Judge Dee Benson, who decides MacKay's fate at 11 a.m. Monday in Salt Lake City's federal courthouse, recently received 347 pages of letters of support for MacKay.
U.S. Rep. Rob Bishop, R-Utah, and state Sen. Pete Knudson, R-Brigham City, were among the estimated 200-plus authors.
The prosecutors' memorandum Thursday "acknowledges that a large number of letters were submitted on (MacKay's) behalf, attesting to his good character and charitable deeds in the community."
"No doubt the defendant did perform many good deeds in his community over the years. And no doubt the defendant presented himself to these individuals in the manner in which they portray him," it states.
However, the memorandum states, the letters in most cases show no firsthand knowledge of how MacKay practiced medicine or his questionable conduct with patients, even occasional coarse language.
"In short, the defendant was leading a double life with his crimes largely hidden from his present supporters."
His charitable deeds in the community fail to negate his serious offenses, writes the prosecution.
"On the whole, the defendant's medical practice consisted primarily of asking the patients if they needed a refill and of what drug. The human wreckage caused by the defendant's crimes was visibly and powerfully on display in the testimony of the patients themselves and of their families."
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