                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 05a0201n.06
                                 Filed: March 22, 2005

                                            No. 02-6169


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
ALI HADI SAWAF,                                        EASTERN DISTRICT OF KENTUCKY

       Defendant-Appellant.

                                                /




BEFORE:        KEITH and CLAY, Circuit Judges; OBERDORFER, District Judge.*

       CLAY, Circuit Judge. Defendant, Ali Hadi Sawaf, appeals his conviction and sentence

pursuant to 21 U.S.C. § 841(a)(1) for writing or approving prescriptions that were not issued for a

legitimate medical purpose and were not in the usual course of his medical practice. After a jury

trial, Defendant was convicted of eight of the eleven counts against him, resulting in a 240-month

sentence. On appeal, Defendant argues 1) that the evidence presented at trial was insufficient to

support his conviction on six charges; 2) that his conviction on all counts should be overturned

because he was denied a fair trial; and 3) that his sentence should be vacated in light of the Supreme



       *
      The Honorable Louis F. Oberdorfer, United States District Judge for the District of
Columbia, sitting by designation.
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Court’s recent decision in United States v. Booker, 534 U.S. —, 125 S.Ct. 738 (2005) and because

the district court erred in calculating the amount of pills illegally prescribed by Defendant and in

enhancing Defendant’s sentence under § 3B1.3 of the Federal Sentencing Guidelines.

       For the reasons set forth below, we AFFIRM Defendant’s conviction but VACATE his

sentence and REMAND for re-sentencing.

                                         BACKGROUND

                                       Procedural History

       In June of 2001, a federal grand jury in the Eastern District of Kentucky returned an

indictment charging Defendant with eleven counts of unlawfully distributing controlled substances,

including Schedule II drugs Oxycontin and Tylox, by writing or approving prescriptions that were

not issued for a legitimate medical purpose and were not in the usual course of Defendant’s

professional practice as a urologist, in violation of 21 U.S.C. § 841(a)(1).

       The indictment also included three firearms counts against Defendant for possession of

firearms after being convicted of a felony and domestic abuse, in violation of 18 U.S.C. § 922(g).

Following a two-week jury trial, Defendant was convicted of eight of the eleven drug charges

(Counts 1, 3, 4, 5, 8, 9, 10, 11) but was acquitted of all of the firearms charges and the remaining

three drug charges. Count 1 charged Defendant with knowingly distributing Schedule II, III, and

IV controlled substances by writing or approving prescriptions that were not in the usual course of

his professional practice. The remaining seven counts involved particular prescriptions issued by

Defendant to law enforcement officers working in an undercover capacity. Five counts involved

prescription of Oxycontin on December 1, 2000 (Count 4); January 29, 2001 (Count 11); January


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4, 2001 (Count 9); January 3, 2001 (Count 8); January 30, 2001 (Count 10). One count arose from

prescription for Tylox on November 1, 2000 (Count 3); and one count from a prescription for

Vicodin on December 13, 2000 (Count 5).

       At sentencing, the district court accepted the probation officer’s findings that Defendant’s

sentencing range was between 235 to 293 months imprisonment based on an offense level of thirty-

six and a category III criminal history. The district court then sentenced Defendant to a concurrent

term of 240-months imprisonment on each of Counts 1, 4, 8, 9, 10 and 11 and a concurrent term of

60 months imprisonment on each of Counts 3 and 5. On September 4, 2002, Defendant filed a

timely notice of appeal with this Court, appealing his conviction and sentence.

       Oral argument in this case was held on June 8, 2004. The Supreme Court issued its opinion

in Booker on January 12, 2005. Subsequently, Defendant moved for leave to file a supplemental

letter brief in light of Booker. We granted that motion, and both Defendant and the government have

filed supplemental letter briefs.

                                                Facts

       The facts are taken from the record developed before the district court.1 Defendant Ali Hadi

Sawaf is a medical doctor specializing in urology. He voluntarily left his practice of medicine at the

Daniel Boone Clinic in Harlan, Kentucky, in August 2000, to start his own practice in Harlan. When

Defendant first started out on his own, he borrowed an office to use on weekends from a physician

named Dr. Alan Freid (“Dr. Freid”). After only two weekends, Dr. Freid asked Defendant to leave


       1
         We note that Defendant’s brief to this Court did a very poor job of presenting the facts of
the case. Defendant devotes exactly a page and a half to the facts of the case and merely stated the
procedural and not the substantive facts of the case.

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his office after Freid learned that his in-office pharmacy was “literally running out of controlled

substances” such as Oxycontin because Defendant was filling out prescriptions to patients on an

“unbelievable scale.” (J.A. at 625-26). According to Dr. Freid’s trial testimony, he drove by the

office one weekend and observed that “it was almost like a circus was in town or something. It was

unbelievable. People all over the place, milling about.” (J.A. at 626). Dr. Freid testified that when

he confronted Defendant about writing prescriptions for controlled substances, Defendant allegedly

told him “Well, I have the white coat.” (J.A. at 626).

       Another physician, Dr. Richard Ocampo (“Dr. Ocampo”), agreed to share his office with

Defendant; Dr. Ocampo shared his office with Defendant from October 2000 to around the middle

of January 2001. Dr. Ocampo told Defendant that he could not accommodate his practice due to

the presence of numerous patients who came to see Defendant. After leaving Dr. Ocampo’s office,

Defendant set up shop in a mall office with very little medical equipment, but with a large number

of customers. Defendant was arrested on February 1, 2001, after law enforcement executed several

undercover operations that gave them probable cause to believe that Defendant prescribed or

approved of prescriptions for controlled substances that were not issued for a legitimate medical

purpose and were not in the usual course of his medical practice. Defendant’s patient files were

seized along with $17,620 in cash found at the office.

       Trial testimony from pharmacists, Defendant’s employees, Defendant’s patients, law

enforcement officers, and medical experts revealed that Defendant issued a large number of

prescriptions for controlled substances during his practice from August 2000 to February 2001.

Harlan pharmacist Joe Myers (“Myers”) testified that after Defendant left the Daniel Boone Clinic,



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his narcotics prescriptions became “more and more frequent, with more repetition out of patients”

and without explanation on the prescription form he filled out. (J.A. at 200-03). Myers testified that

he could not keep up his supply of controlled substances based on the large number of prescriptions

approved by Defendant. Another Harlan pharmacist named Jon McNiel (“McNiel”) testified that

he noticed patrons were coming in often with prescriptions for Oxycontin from Defendant. Because

they noticed numerous patrons returning to refill prescriptions, both Myers and McNiel stopped

filling prescriptions for controlled substances that came from Defendant. Similar testimony of over-

prescription came from Harlan pharmacists Brian Key and Todd Walters. James Nevils (“Nevils”),

a pharmacist from Harrogate, Tennessee, about forty-five minutes from Harlan, testified that

Defendant called and asked him to fill out prescriptions since Harlan pharmacists refused to fill

prescriptions approved by him. Nevils initially agreed to fill the prescriptions, but stopped filling

prescriptions from Defendant when “excessive amounts of people” came for “pretty potent

medication” prescribed by Defendant. (J.A. at 278). Harrogate pharmacy records show that the

pharmacy filled three of Defendant’s prescriptions in September of 2000, five in October of 2000,

twenty-two in November of 2000, and over 1000 prescription between December of 2000 and

January of 2001. Harrogate’s filled prescriptions for Schedule II drugs included: 5,870 Oxycontin

40-milligram pills; 3,600 20-milligram Oxycontin pills; 300 10-milligrams Oxycontin pills; 3,095

dosage units of Tylox; 570 dosage units of methadone; 1,010 dosage units of Roxicet; approximately

1,600 dosage units of Percocet; 195 dosage units of Percodan; and 60 dosage units of Seconal. Ed

Carlton, a pharmacist from a town near Harlan, testified that he stopped filling prescriptions from




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Defendant because “I didn’t feel that any one physician could humanly see that many patients and

put out that many and do it thoroughly and correctly in a single day.” (J.A. at 295).

       In the fall of 2000, Kentucky’s Attorney General (“AG”) office began an investigation of

Defendant based on complaints from pharmacists that Defendant was over-prescribing Oxycontin.

Gregory Shay (“Shay”), an investigator with the AG office, visited Defendant in an undercover

capacity as part of the investigation. On October 16, 2000, Shay went to Defendant’s office and

complained that he had a fractured leg and was addicted to Tylox and “hurt all over.” (J.A. at 324).

Defendant diagnosed Shay with back pain and gave Shay a prescription for Vicodin and arranged

for a subsequent appointment a month later. On November 1, 2000, Shay came two weeks prior to

his mid-November appointment and after asking Shay about his “back pain,” which Shay never

complained of, Defendant gave Shay a prescription for Tylox. (J.A. at 328-29). This conduct was

the basis for the charge in Count 3 of the indictment. Shay returned to Defendant on December 1,

2000, without having the X-ray that Defendant requested he should get; nevertheless, Defendant

gave Shay a prescription for Oxycontin at Shay’s request and advised Shay that he should have the

prescription filled at the Harrogate pharmacy. This conduct was the basis for Count 4 in the

indictment. Shay again returned to Defendant on December 13, 2000, without any X-rays, yet

Defendant gave Shay a prescription for Vicodin. This conduct was the basis for Count 5.

       Around the time that Defendant filled prescriptions he was on probation for a Michigan

conviction and was being supervised by Sharon Meachum (“Meachum”), a Kentucky probation

officer. Meachum testified at trial that Defendant informed her that she could visit his office any

time and that he would give her a prescription for any pills she desired. On December 21 and 22,



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2000, Harlan police officer Shawn Bryant (“Bryant”) met with Defendant and told him of his great

need for prescription drugs for himself and his wife. On January 3, 2004, Defendant prescribed

Oxycontin for Bryant and his wife without any physical examination. This conduct was the basis

for Count 8 in the indictment. On January 4, 2001, Bryant visited Defendant to discuss problems

Bryant was having, and Defendant allegedly told Bryant that he would take care of him, if Bryant

takes care of him; Defendant also prescribed Oxycontin to Bryant without urging. This conduct was

the basis for Count 9 of the indictment. Detective Roger Hall (“Hall”) of the Harlan Sheriff’s office

visited Defendant and asked about the effects of Oxycontin, to which Defendant supposedly

responded: “My friend, it’s the best medicine. Let me write you some.” (J.A. at 544). Defendant

also recommended and prescribed Viagra for Hall which, along with Oxycontin, would prolong

feelings of euphoria. This conduct was the basis for Count 11 in the indictment. On January 30,

2003, Defendant was visited by James Vicini (“Vicini”), another Harlan Sheriff’s detective.

Defendant prescribed Viagra and Oxycontin to Vicini without examination. This conduct formed

the basis of Count 10.

       At trial, Dr. Douglas Kennedy (“Dr. Kennedy”), an expert witness for the government,

examined 50 randomly-selected files of Defendant’s patients. Dr. Kennedy concluded that none of

the controlled substance prescriptions in the 50 files had a legitimate medical purpose or had been

issued in the usual course of professional medical practice. Dr. Kennedy testified that “[e]ach

patient received potent . . . medication for no apparent reason other than [a] subjective complaint.”

(J.A. at 1013). Several former employees of Defendant gave testimony that Defendant’s patients

increased exponentially, apparently after word got around that Defendant prescribed strong



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                                            No. 02-6169

medications; these employees further testified that Defendant invariably prescribed controlled

substances to these patients and rarely performed even routine medical check-ups before prescribing

the medications. Based on the foregoing, a jury convicted Defendant of several counts of

distributing controlled substances in violation of 21 U.S.C. § 841(a)(1). Defendant now appeals his

conviction and sentence.

                                           DISCUSSION

I.     Whether the evidence was sufficient to support Defendant’s convictions on Counts 1,
       3, 4, 5, 8, and 9.

       Defendant contends that his convictions on Counts 1, 3, 4, 5, 8, and 9 should be overturned

on the basis that sufficient evidence to support them was not presented at trial. We review a

challenge to the sufficiency of the evidence to determine “‘whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the essential

element of a crime beyond a reasonable doubt.’” United States v. Crayton, 357 F.3d 560, 573 (6th

Cir. 2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); United States v. Clay, 346 F.3d

173, 176 (6th Cir. 2003). Further, “[w]hen reviewing a conviction on appeal, this Court resolves

all conflicts in the testimony in favor of the government and draws every reasonable inference in its

favor.” United States v. Doe, 226 F.3d 672, 680 (6th Cir. 2000).

       Defendant claims the district court should have granted his motion of acquittal because the

government did not satisfy its burden of proof on Count 1 of the indictment and, in any event, he

was entitled to judgment as a matter of law because of entrapment. Count 1 of the indictment

charged Defendant with knowingly and intentionally distributing Schedule II, III, and IV controlled

substances by writing or approving prescriptions without legitimate medical purpose. Defendant

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                                             No. 02-6169

maintains that the evidence presented at trial was insufficient to find him guilty of Count 1. He

argues that the strongest trial testimony for the government came from Dr. Kennedy who relied on

only fifty randomly-selected files from Defendant’s patients to determine that Defendant wrote or

approved of prescriptions without a legitimate medical purpose. Defendant’s argument suffers from

a familiar weakness—the absence of any reference to case law to support his position.

        In United States v. Leal, 75 F.3d 219 (6th Cir. 1996), the defendants, a pharmacist and a

physician, were convicted of multiple counts of distributing controlled substances in violation of 21

U.S.C. § 841(a)(1). See Leal, 75 F.3d at 221. Although no direct evidence was offered that

prescriptions by the physician, whom the government alleged conspired with the pharmacist to

distribute the controlled substances, were outside the scope of proper medical practice, a jury

convicted the defendants based in large part on testimony from expert witnesses. Id. at 222-23.

Similarly, in United States v. Veal, 23 F.3d 985 (6th Cir. 1991), circumstantial evidence from an

expert witness was critical to convicting a pharmacist of participating in a “pill-mill.” Veal, 23 F.3d

at 988; see also United States v. Wells, 211 F.3d 988, 997 (6th Cir. 200) (expert testimony was

critical circumstantial evidence used to convict the defendant).

        In the instant case, Defendant argues that testimony at trial, including Dr. Kennedy’s expert

testimony, was insufficient to convict him of Count 1 in the indictment. Yet, just as expert

testimony was critical to the jury’s conviction in Wells, so too was Dr. Kennedy’s testimony, based

only on his review of fifty random patient files, critical to Defendant’s conviction in the instant case.

A reasonable trier of fact could conclude, based on Dr. Kennedy’s testimony, that Defendant wrote

or approved prescriptions without a legitimate medical purpose. In the instant case, additional



                                                  -9-
                                           No. 02-6169

testimony came from Defendant’s former employees, who testified that Defendant did not always

conduct exams before issuing prescriptions and from pharmacists who testified to filling a deluge

of prescriptions for Defendant’s patients. Viewing this evidence in the light most favorable to the

government, as we must, we believe the evidence at trial was sufficient for a reasonable jury to

convict Defendant of knowingly and intentionally distributing Schedule II, III, and IV controlled

substances without a legitimate medical purpose.

       Alternatively, Defendant argues that he should have been acquitted because he was entrapped

as a matter of law. Specifically, Defendant contends that the conduct that formed the basis of

Counts 3, 4, 5, 8, and 9 all involved false and misleading statements by law enforcement officers

working in an undercover capacity to entrap him by seeking prescriptions. In this Circuit,

entrapment is a valid legal defense to a crime only when a defendant sets forth evidence that (1) the

government induced the defendant to commit the crime and (2) the defendant was not predisposed

to commit the crime. See United States v. Khalil, 279 F.3d 358, 364 (6th cir. 2002); United States

v. Burns, 298 F.3d 523, 539 (6th Cir. 2002). In the instant case, Defendant asserts that law

enforcement officers came into his office complaining of pain and concerned about sexual

performance and he therefore prescribed Viagra, Oxycontin and Tylox to these patients without

knowing of their hidden agenda. This may be true, but in the instant case, the testimony at trial

revealed that it was routine practice for Defendant to prescribe controlled substances without

conducting medical exams. At the very minimum, the evidence shows that Defendant was

predisposed to prescribe controlled substances without conducting medical examinations. Thus,

even if the Defendant’s inducement argument were accepted, he cannot escape the predisposition



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element. See United States v. Tuder, 28 F.3d 1420, 1429 (6th Cir. 1994). We therefore conclude that

there was sufficient evidence for a reasonable jury to convict Defendant on Counts 3, 4, 5, 8, and

9 and that Defendant has not made a showing that he was entrapped by law enforcement officials.

II.    Whether Defendant’s due process rights were violated.

       Defendant’s second argument is that his due process rights were violated, by two events at

trial and sentencing. First, Defendant argues that the government committed deception by arguing

at the close of trial that at sentencing it would not ask the court to hold Defendant responsible for

all of the prescriptions from January of 2000 to February of 2001. Our review of the record,

however, reveals that the government did “reserve the right” to make arguments regarding the pill

count at sentencing and did state that the specificity of such pill count would be determined at

sentencing. Therefore, Defendant’s contention that the government deceived the court and himself

is without substance.

       More importantly, however, Defendant argues that the district court erred in permitting the

government to cross-examine defense witnesses using information learned from the Kentucky All

Schedule Prescription and Electronic Reporting System (“KASPER”).2 Aside from stating that the

information gave the government an unfair advantage and that timely objections were filed to

prohibit introduction of the reports, Defendant does not present any argument as to why the reports

should not have been introduced at trial.



       2
         KASPER reports provide, among other things, a listing of controlled substances dispensed
to persons in Kentucky, and although KASPER information is not public, such information may be
obtained by any person pursuant to a court order or by court officers pursuant to a “bona fide
specific investigation.” See KY. REV. STAT. ANN. § 218A.202 (Banks-Baldwin 2004).

                                                -11-
                                            No. 02-6169

        A district court’s evidentiary rulings are reviewed on appeal under an abuse of discretion

standard. See United States v. Chance, 306 F.3d 356, 385 (6th Cir. 2002); United States v.

Middleton, 246 F.3d 825, 837 (6th Cir. 2001). It is settled that a district court abuses its discretion

“when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses

an erroneous legal standard.” United States v. Spikes, 158 F.3d 913, 927 (6th Cir. 1998) (citations

omitted).

        In the instant case, the district court made a specific legal finding that the reports were

obtained pursuant to a “legitimate” investigation and further found that, pursuant to the statute, “no

attempt [has] been made to enter any of this information into record.” (J.A. at 1330-31). On these

facts, it cannot be said that the district court abused its discretion in allowing the government to

cross-examine defense witnesses based on the reports. Defendant’s argument that all his convictions

should be overturned because he was denied a fair trial is therefore without merit.

        III.   Whether the district court properly sentenced Defendant.

        A.      Defendant’s sentence is vacated and remanded under Booker.

        As noted above, in a letter brief filed with this Court after the Supreme Court’s

announcement of its opinion in United States v. Booker, 534 U.S. —, 125 S.Ct. 738 (2005),

Defendant asserted for the first time that the district court’s determination of the relevant pill count

in this case violated his rights under the Sixth Amendment. In its letter brief on the issue, the

government agreed with Sawaf.3


        3
        The government also asserted in its letter brief that the district court’s application of a
sentencing enhancement in this case for abuse of a position of trust by use of a special skill, in
violation of §3B1.3 of the Sentencing Guidelines, was similarly a violation of Defendant’s Sixth

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                                           No. 02-6169

       We agree with the parties that because the district court sentenced Defendant pursuant to the

then-mandatory Federal Sentencing Guidelines, and because the number of pills attributed to

Defendant was not admitted by him or determined by a jury beyond a reasonable doubt but rather

was determined by the district court, his Sixth Amendment rights were violated. We therefore will

vacate his sentence and remand to the district court for re-sentencing. See United States v. Oliver,

397 F.3d 369, 377-82 (6th Cir. 2005).

       B.      Defendant’s other sentencing claims

       Although Booker excised that part of the Guidelines which made them mandatory,

sentencing courts must continue to take into consideration the recommended Guidelines sentence.

Booker, 125 S.Ct. at 764. This Court will continue to provide guidance as to the proper

interpretation of any Guidelines provisions whose application is challenged on appeal, and we do

so now with respect to Defendant’s remaining sentencing claims. See United States v. McDaniel,

398 F.3d 540, 551 (6th Cir. 2005)

       In addition to his Booker claim, Defendant challenges his sentence of 240-months

imprisonment on essentially two grounds. First, he contends that the district court acted arbitrarily

and capriciously and erred in determining the pill count which supported the offense level used for

sentencing. Second, Defendant argues that the two-level enhancement imposed for abuse of trust




Amendment rights. Because we are vacating Defendant’s sentence and remanding for resentencing
on the ground that the calculation of the pill count was Booker error, we need not determine either
a) whether the government is correct that this sentencing enhancement violated Defendant’s Sixth
Amendment rights or b) whether we could reach a Booker error that has never been raised by a
defendant but has been asserted by the government.

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                                           No. 02-6169

and use of special skill violated Defendant’s double jeopardy protections. We will discuss each of

this arguments in turn.

       1.      Whether the district court erred in determining the pill count for purposes of
               calculating Defendant’s offense level.

       Defendant asserts that the district court uncritically accepted the probation officer’s

recommendation that Defendant’s base offense level was 34 based on Defendant’s issuance of, or

approval of, prescriptions for 87,760 pills. We agree that the district court might have more clearly

identified the basis of its factual findings, and encourage the district court to do on remand.

However, we note that the district court stated in the judgment that it was not considering any pills

counted on the charges for which Defendant was acquitted, and additionally would only consider

those pills that were filled after November 1, 20004 and only Schedule II narcotics. This approach

is consistent with the addendum to the pre-sentence report, which makes it clear that the

prescriptions for Schedule II narcotics filled from December 2000 to February 2001 result in a

quantity well in excess of the number of pills required for a base offense level of thirty-four.

       As to the district court’s finding that the probation officer correctly determined Defendant’s

base sentence, Defendant suggests that the government manipulated the sentencing guideline by

using Count 1 as the “umbrella charge” to “create the massive offense level of 34.” (Defendant’s

Br. at 11). However, the district court adopted the probation officer’s recommendation in the pre-

sentence report, which calculated Defendant’s base offense by relying solely on the counts on which


       4
        Defendant now contends that the trial court “arbitrarily and capriciously” set the date at
November 1, 2000. Def. Brief at 10. However, at sentencing, Defendant specifically argued that
prescriptions filled before September 2000 should not be counted because evidence at trial did not
support a finding that there were problems with those prescriptions.

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Defendant was convicted. After sustaining several of Defendant’s objections to the pre-sentence

report, the district court found that Defendant’s sentence guideline range remained 235 to 293

months for the offenses of conviction. Defendant argues that if the pill count on the charges on

which he was convicted was the sole basis for his base offense level, then his base offense level

would have been 14, not 34. We find this argument unpersuasive in light of the trial testimony from

pharmacists who filled Defendant’s prescriptions and the detailed application of the sentencing

guidelines by the probation officer for each of the counts for which Defendant was convicted.5

Regardless, Defendant reiterates the same argument that the district court’s findings were arbitrary

and capricious, but does not point to specific factual or legal support for his argument that the

calculation of his base offense level was error. In our view, Defendant’s claim of error in this regard

is without merit.

       2.      Whether the district court erred in enhancing Defendant’s sentence under §
               3B1.3.

       Defendant contends that the district court improperly enhanced Defendant’s sentence under

§ 3B1.3 of the Sentencing Guidelines for abusing his position of trust by using his special skill.

Section 3B1.3 of the Sentencing Guidelines provide for an upward adjustment of a defendant’s

sentence as follows:

       If the defendant abused a position of public or private trust, or used a special skill,
       in a manner that significantly facilitated the commission or concealment of the


       5
        The probation officer determined Defendant’s base offense level by first recognizing that
Defendant’s criminal activity “was distribution of Schedule II, III, and IV controlled substances with
a marijuana equivalency of 8683.38 KGS. The offense level specified in the Drug Quantity Table
under U.S.S.G. § 2D1.1(c)(3), for at least 3,000 KG but less than 10,000 KG of marijuana, sets a
base level of 34.” (J.A. at 2029).

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       offense, increase by two levels. This adjustment may not be employed if an abuse
       of trust or skill is included in the base offense level or specific offense characteristic.
       If this adjustment is based upon an abuse of a position of trust, it may be employed
       in addition to an adjustment under § 3B1.1 (Aggravating Role); if this adjustment is
       based solely on the use of a special skill, it may not be employed in addition to an
       adjustment under § 3B1.1 (Aggravating Role).

       U.S.S.G. § 3B1.1.

       The district court found that Defendant abused both his position of trust and his special skill

and enhanced his sentence under § 3B1.3. Defendant argues that the district court erroneously

enhanced his sentence because “an abuse of trust or skill is included in the base offense level or

specific offense characteristic.” U.S.S.G. § 3B1.3. That is, Defendant argues that the counts on

which he was convicted required that he be a licensed medical doctor as a prerequisite for

conviction, and therefore an abuse of trust or skill was already included in the calculation of

Defendant’s base offense level and was a specific offense characteristic of the charges on which he

was found guilty. Defendant is mistaken about the proper application of § 3B1.3. The sentencing

guidelines define a “special skill” as “a skill not possessed by members of the general public and

usually requiring substantial education, training, or licensing.” U.S.S.G. § 3B1.3 cmt. 2.

       Defendant cited no case in his briefs to this Court to support his view on this issue, although

we have previously addressed precisely this issue. In United States v. Johnson, 71 F.3d 539 (6th Cir.

1995), we determined that § 2D1.1, the underlying guideline in both Johnson and the instant case,

“does not consider whether the offense was committed by a doctor or anyone else. Thus,

defendant’s use of a special skill was not taken into account by § 2D1.1 and should be considered

by the District Court, through application of guideline § 3B1.3.” Johnson, 71 F.3d 539 at 544.

Johnson further explained “[a]nyone can be found guilty of violating 21 U.S.C. § 841(a)(1) by

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distributing pharmaceuticals. Doctors are merely exempt from this section when they dispense or

prescribe controlled substances in the regular course of professional practice.” Id. (citing United

States v. Moore, 423 U.S. 122, 131 (1975)). The district court’s enhancement of Defendant’s

sentence under § 3B1.3 was therefore entirely appropriate.

                                        CONCLUSION

       For the foregoing reasons, we AFFIRM Defendant’s conviction, but VACATE his sentence

and remand for resentencing.




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