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Appeals court denies request from Brigham City doctor to delay prison sentence

Published: Wednesday, Feb. 22 2012 2:44 p.m. MST

Dr. Dewey MacKay enters federal court in Salt Lake City on Wednesday, July 20, 2011. He is on trial facing 85 counts of illegally prescribing painkillers.

Kerry Jensen, Deseret News

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BRIGHAM CITY — Pill doctor Dewey C. MacKay will not be allowed to stay out of prison pending the appeal of his conviction.

The 10th Circuit Court of Appeals issued the ruling Wednesday after finding that it was "unable to conclude that MacKay has presented a substantial question for appeal" to justify his ongoing release.

A jury found the 64-year-old Brigham City doctor guilty of 37 counts of illegally dispensing painkillers, including two that resulted in the death of 55-year-old David Wirick; and three counts of using a communication device in a drug trafficking offense. He was acquitted of 44 other counts.

U.S. District Judge Dee Benson subsequently sentenced MacKay to 20 years in prison, but the judge called the federal minimum mandatory sentence both harsh and too long.

MacKay filed an appeal of his conviction to the appellate court. He then filed a motion asking that he be allowed to avoid prison until the appeal is complete. MacKay's attorney, Peter Stirba, argued that his client suffers from a number of health problems that cannot be properly addressed in the prison system.

When Benson denied the request, MacKay also took an appeal of that ruling to the 10th Circuit.

The appellate court said that in order to grant MacKay's release, he would have to meet four criteria: that he was not a flight risk, not a danger to the community, that he was not appealing simply to cause a delay, and that he was raising a "substantial question of law or fact" that would likely lead to a reversal of the conviction or a reduced sentence.

"The district court held that MacKay was not a flight risk or a danger to the community, and the government concedes those points," the ruling states. "It does not appear that the appeal is for the purpose of delay."

But because the judges did not feel his appeal raised the necessary "substantial question," they did not grant MacKay's request to stay out of prison while the appeal is pursued.

MacKay was originally set to report Feb. 1 to begin his prison sentence. A spokesman for the U.S. Attorney's Office said the government would file a motion soon to ask that a new date be set.  

E-mail: emorgan@desnews.com, Twitter: DNewsCrimeTeam

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