                                                                          FILED
                            NOT FOR PUBLICATION                            JUN 05 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10124

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00128-DAE-1

       v.
                                                 MEMORANDUM*
HAROLD C. SPEAR, III, M.D.,

              Defendant - Appellant.

UNITED STATES OF AMERICA,                        No. 12-10125

              Plaintiff - Appellee,              D.C. No. 1:07-cr-00299-DAE-1

       v.

HAROLD C. SPEAR, III, M.D.,

              Defendant - Appellant.

                    Appeal from the United States District Court
                             for the District of Hawaii
                     David A. Ezra, District Judge, Presiding

                      Argued and Submitted October 8, 2013
                               Honolulu, Hawaii

Before: KOZINSKI, Chief Judge, and FISHER and WATFORD, Circuit Judges.

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Harold Spear appeals his conviction by guilty plea to five counts of

knowingly and intentionally distributing controlled substances outside the usual

course of professional practice and not for a legitimate medical purpose. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.1

      1. There was no plain error in the change of plea colloquy. Spear admitted

dispensing controlled substances outside the usual course of professional medical

practice and not for a legitimate medical purpose. That is sufficient to establish

illegal distribution. See United States v. Black, 512 F.2d 864, 866 & n.2, 868 (9th

Cir. 1975).

      2. There was a sufficient factual basis to support Spear’s guilty plea. See

United States v. Neel, 547 F.2d 95, 96 (9th Cir. 1976) (per curiam). Spear admitted

that he prescribed controlled substances without conducting a face-to-face visit or

obtaining any objective data supporting the prescription, and that he signed

prescriptions in blank. When his staff issued a prescription using these blank

forms, the patient was charged between $60 and $100 in cash or credit card

payments. Because “[c]ulpable intent . . . can be inferred from the defendant’s

conduct and from the surrounding circumstances,” United States v. Bucher, 375



      1
        In a concurrently filed opinion, we conclude that the appellate waiver in
Spear’s plea agreement does not preclude our review of the merits of this appeal.

                                          2
F.3d 929, 934 (9th Cir. 2004), there was a sufficient factual basis for Spear’s guilty

plea. See also United States v. Feingold, 454 F.3d 1001, 1008 (9th Cir. 2006).

      3. The government did not breach the plea agreement by introducing

uncharged prescriptions as evidence of relevant conduct during the sentencing

hearing. The government did not explicitly promise to limit relevant conduct to

the counts that were charged but dismissed, and Spear never objected to the

admission of these uncharged prescriptions, either during the sentencing hearing or

in his motions to withdraw his guilty plea.

      4. The district court did not abuse its discretion by denying Spear’s motion

to withdraw his guilty plea. The court applied the correct standard of review, held

an evidentiary hearing and carefully considered but rejected the arguments

supporting Spear’s motion. See United States v. Davis, 428 F.3d 802, 806 (9th Cir.

2005). The court properly considered Spear’s delay in filing that motion to

evaluate the credibility of his stated reasons for seeking to withdraw his plea.

      AFFIRMED.




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