
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1954                                    UNITED STATES,                                      Appellee,                                          v.                               NICHOLAS LIMBEROPOULOS,                                Defendant, Appellant.                                      __________        No. 92-1955                                    UNITED STATES,                                      Appellee,                                          v.                                WILLIAM LIMBEROPOULOS,                                Defendant, Appellant.                                      __________        No. 92-2075                                    UNITED STATES,                                      Appellant,                                          v.                               NICHOLAS LIMBEROPOULOS,                                 Defendant, Appellee.                                      __________        No. 92-2076                                    UNITED STATES,                                      Appellant,                                          v.                                WILLIAM LIMBEROPOULOS,                                 Defendant, Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer,* Chief Judge,                                          ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Steven J.  Rappaport with whom Rappaport,  Freeman &  Pinta was on            ____________________           ____________________________        briefs for Nicholas Limberopoulos.            Barry P.  Wilson with  whom Craig A.  Cellitti was  on briefs  for            ________________            __________________        William Limberopoulos.            Michael Kendall,  Assistant United States  Attorney, and Frank  A.            _______________                                          _________        Libby, Jr.,  Assistant  United  States  Attorney, with  whom  A.  John        __________                                                    ________        Pappalardo, United States Attorney, was on briefs for United States of        __________        America.                                              ____________________                                    June 14, 1994                                 ____________________        ____________________        *Chief Judge Stephen  Breyer heard  oral argument in  this matter  and        participated in the drafting  of the opinion, but did  not participate        in  issuance  of the  panel's opinion.    The remaining  two panelists        therefore issue this opinion pursuant to 28 U.S.C.   46(d).                                          2                    SELYA, Circuit  Judge.   A jury convicted  Nicholas and                           ______________          William   Limberopoulos,  both  pharmacists,   of  conspiring  to          dispense,  without  proper  prescriptions,  approximately  18,000          pills,  about 12,000 of which were Percodan or Percocet and about          4,000   of  which  were  Valium.    See  21  U.S.C.     841(a)(1)                                              ___          (distributing   or  dispensing  addictive  drugs);  21  U.S.C.             843(a)(2) (false  DEA numbers);  21 U.S.C.    843(a)(4)(A) (false          prescriptions); 21 U.S.C.   846 (conspiracy).  At sentencing, the          district court  departed from the specified  guideline sentencing          ranges (GSRs)    235-293 months for  Nicholas and 188-235  months          for  his  son, William    and  instead  sentenced Nicholas  to 36          months in prison  and William to 30 months in  prison.  The court          departed  because,  in its  view,  the  defendants' conduct  fell          outside the "heartland" of the unlawful-drug-trafficking statute,          21  U.S.C.   841, but within the "heartland" of an unlawful-drug-          prescribing statute, 21 U.S.C.   843.  Since this latter statute,          which  is regulatory in nature, limits prison terms to a 48-month          maximum, far less than  the maximum under section 841,  the court          felt justified in departing downward.                    Both sides appeal.   We agree with  the government that          the  district  court's  "heartland" determinations  rest  upon an          erroneous  conception  of the  unlawful-drug-prescribing statute.          We  do not accept  the defendants' arguments  on this, or  on any          other issue.  Consequently, we affirm the defendants' convictions          and  remand the  case for  resentencing.   We specify  that, even          though we  find the  court's given ground  for departure  legally                                          3          inadequate,  the  court remains  free  to  consider departure  if          other, legally adequate reasons exist.                                          I                                      Background                                      __________                                          A.                                      The Trial                                      _________                    As   is   well  known,   the  unlawful-drug-trafficking          statute,  21  U.S.C.    841,  forbids,  among other  things,  the          distribution, dispensing, or possession with intent to distribute          of highly addictive  "Schedule II" drugs.   Other less well-known          statutes  apply  to  pharmacists,  requiring  that  they maintain          inventory  records, dispense  drugs only  in pursuance  of proper          prescriptions, and  keep copies  of all such  prescriptions, duly          canceled  to prevent unauthorized reuse.   See 21  U.S.C.    827-                                                     ___          830.  What we  have called the unlawful-drug-prescribing statute,          21 U.S.C.   843, makes it a crime, among other things, to violate          certain of these record-keeping requirements.                     In  this case,  the  government charged  the defendants          both with  violating  the unlawful-drug-prescribing  statute,  21          U.S.C.    843, and with conspiring  to violate the unlawful-drug-          trafficking statute,  21 U.S.C.    841.   It introduced  evidence          that, in essence, showed the following:                    1.   In  1988  and  again  in  1989,  Drug  Enforcement                    Administration (DEA) agents found that Limby's Pharmacy                    in Lowell, Massachusetts had not kept inventory records                    of its addictive drugs.   The agents seized a  group of                    Limby's  canceled  prescriptions (written  between 1986                    and 1988) and concluded that they were fraudulent.                                          4                    2.  Seven physicians testified that they had not signed                    their  names   to  particular  prescriptions,   as  the                    pharmacy's records indicated.   Some of these witnesses                    pointed out that  the prescriptions bore  signatures or                    customer  names  that   seemed  not  only  false,   but                    obviously so,  as, for example, the  customer name "Tin                    Can" on a prescription form falsely bearing the name of                    a  Vietnamese physician.    An eighth  doctor had  died                    before   the  time   of   the  purported   issuance  of                    prescriptions   bearing  his   name.     Five  of   the                    "recipients" listed on  the prescriptions, according to                    their own testimony or that of their relatives, had not                    requested,   or   received,   the   drugs   purportedly                    prescribed.                    3.   A drug addict  testified that he  had often bought                    addictive  drugs  at  Limby's,   without  prescription,                    between  1986 and 1987.   He added  that Limby's clerk,                    from  whom he bought the  drugs, told him  not to worry                    about the  fact that  Nicholas Limberopoulos knew  that                    the clerk was selling him addictive drugs.           On the basis of  this, and related, evidence, the  jury convicted          Nicholas Limberopoulos,  who owned  Limby's  Pharmacy and  worked          there occasionally, of writing 13  false prescriptions.1  See  21                                                                    ___          U.S.C.   843(a)(4)(A).  It convicted his son, William, who worked          at Limby's  regularly, of  writing 39 other  false prescriptions.          See id.  It  convicted William, but acquitted Nicholas,  of using          ___ __          false DEA numbers.  See 21  U.S.C.   843(a)(2).  And it convicted                              ___          both defendants  of conspiring  to distribute addictive  drugs to          others.  See 21 U.S.C.    841, 846.                   ___                                          B                                      Sentencing                                      __________                    At sentencing, the district  court first calculated the          GSRs,  properly using the June 15, 1988 version of the guidelines                                        ____________________          1One  of the  counts of  conviction has  since been  dismissed on          motion of the government.                                          5          (to which we shall refer throughout).  The court referred to  the          guideline  applicable to  a  conspiracy to  dispense Schedule  II          drugs  unlawfully,  see U.S.S.G.    2D1.4  &  App. A-19,  as that                              ___          guideline  instructs,  found  the  weight of  the  various  pills          involved, and  converted these weights into  an equivalent weight          in heroin.  The court did so by aggregating the weight of all the          pills   listed  on   the  false   prescriptions   underlying  the          substantive counts on  which either Nicholas or William  had been          convicted (as well  as a few other pills listed  on a small group          of related prescriptions).  See U.S.S.G.   1B1.3(a)(2) & comment.                                      ___          (2).  For  example, the  jury found Nicholas  responsible for  13          false  prescriptions, which,  taken  together, accounted  for the          dispensing  of 275 grams of  Percocet and 392.7  grams of Valium.          The jury  found William responsible for  92 violations concerning          false  prescriptions  and  DEA numbers,  which,  taken  together,          involved 2145 grams of Percocet, 1720 grams of Percodan, and 50.5          grams of  Valium.   The guidelines specified  that these  amounts          (plus the weight of  the few additional related pills)  should be          treated  as  the equivalent  of between  3  and 9.9  kilograms of          heroin, yielding a base offense level of 34.  The court added two          more  levels for each defendant's "abuse of a position of trust,"          U.S.S.G.    3B1.3, and it added two further levels for Nicholas's          "obstruction of  justice."  Id.    3C1.1.  The result    level 38                                      __          for  Nicholas and level 36 for William    produced GSRs for these          two first-time offenders of 235-293 months  for Nicholas and 188-          235 months for William.                                          6                    The lower  court then  departed downward from  the GSRs          because it believed that the defendants' conduct amounted, not to          unlawful  drug   trafficking,  but,   rather,  to  the   kind  of          "regulatory" offense forbidden  by the  unlawful-drug-prescribing          statute, with  its maximum penalty of  48 months in prison.   The          court wrote:                    [I]t is the case here that  the object of the                    conspiracy charged,  the charged part  of the                    conspiracy, is dispensing  drugs pursuant  to                    prescriptions not issued  for [a]  legitimate                    medical purpose.  That is also the essence of                    the substantive offenses charged.                    Under  these  circumstances,  the  mechanical                    application of [the] guidelines  with respect                    to count 1 [drug  trafficking] significantly,                    significantly, overstates  the seriousness of                    the predicate and substantive offenses.  This                    case is not  a typical drug  conspiracy case.                    Indeed, all  of the substantive  offenses are                    violations of a regulatory statute [21 U.S.C.                       843], and  Congress's intent  with respect                    thereto was, in this  case, overridden by the                    use of sections 846 [the  conspiracy statute]                    and 841 [the drug  trafficking statute] . . .                    . Accordingly, I shall depart for the reasons                    I have just mentioned.          This said, the court  imposed a 36-month prison term  on Nicholas          and a  30-month prison term on  William.  The government  and the          defendants now cross-appeal.                                          II                               The Government's Appeal                               _______________________                    The government  appeals the court's decision  to depart          downward.   It acknowledges  that the  district  court has  broad          power to depart from a properly calculated sentencing range in an          unusual  case   a case  that lies outside  the "heartland" of the                                          7          base  guideline that would otherwise apply.  See United States v.                                                       ___ _____________          Rivera, 994 F.2d 942, 947 (1st Cir. 1993); United States v. Diaz-          ______                                     _____________    _____          Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862          _________                              ____________          (1989); see also  U.S.S.G. Ch.  I, Pt. A,  intro. comment.  4(b).                  ___ ____          But the sentencing court must  give its reason(s) for  departing,          see 18 U.S.C.   3553(c)(2); and the government asks this court to          ___          review  the legal  adequacy  of those  reasons,  as well  as  the          reasonableness  of the result.   See Rivera, 994  F.2d at 950-52;                                           ___ ______          Diaz-Villafane,  874 F.2d at 50; see also 18 U.S.C.   3742(e)(3).          ______________                   ___ ____          In  particular, the government urges us to find that the district          court's reason  for departing reflects a  misunderstanding of the          basic aim that animates the unlawful-drug-prescribing statute.                      The district  court's reason for departing  here is its          professed  belief  that  defendants'  conduct  fell  outside  the          "heartland" of  the strict unlawful-drug-trafficking  statute, 21          U.S.C.    841,  but within  the "heartland"  of the  more lenient          unlawful-drug-prescribing statute, 21  U.S.C.   843.  That  is to          say,  the  court  thought  that  the  offenders'  conduct,  while          technically falling  within a specific statute  and guideline, in          reality more  closely resembled conduct forbidden  by a different          statute  and guideline  (as,  for example,  a  technical tax  law          conviction might involve conduct  more appropriately described as          "insider trading").    And, for  that reason,  it concluded  that          departure was appropriate.                    The  district  court  misunderstood   the  relationship          between the two relevant statutes   the unlawful-drug-trafficking                                          8          statute,  section 841, and the unlawful-drug-prescribing statute,          section 843    and therefore, misapplied its  theory of departure          here.   The  court  seemed  to  think  that  the  former  statute          primarily  targets non-pharmacists (those,  say, who sell illegal          drugs  on  the  street),   while  the  latter  primarily  targets          pharmacists  selling drugs  unlawfully  without prescriptions  in          their  shops.   For  that reason,  it  felt that  the defendants'          conduct more appropriately fell within the "heartland" of section          843, not section 841.  Our  examination of the history and use of          the two  statutes, however, indicates that they  basically make a          different  distinction     a  distinction  between unlawful  drug          distribution  on one  hand,  and unlawful  record-keeping on  the          other hand.   Here,  moreover, the  defendants' conduct seems  to          involve the former considerably more than the latter.                    We begin  the process of adding flesh to this barebones          legal conclusion about the  interrelationship of the two statutes          by remarking the obvious:  the unlawful-drug-trafficking statute,          21  U.S.C.   841, does  not exempt pharmacists  who sell narcotic          drugs  without  prescriptions, nor  does  it  suggest that  their          conduct  is somehow less seriously wrong than the conduct of non-          pharmacist drug dealers.  On the contrary, the statute applies to          the two groups' conduct in the same  way.  The statute's language          simply  makes   it  a  crime  "knowingly   or  intentionally"  to          "distribute or  dispense" narcotic drugs.   And this  language is          reinforced  by well-established  case law  making clear  that the          statute  applies   to  a  pharmacist's   (or  physician's)  drug-                                          9          dispensing activities  so long  as  they fall  outside the  usual          course of professional practice.  See United States v. Moore, 423                                            ___ _____________    _____          U.S. 122, 142  (1975); United  States v. DeBoer,  966 F.2d  1066,                                 ______________    ______          1068-69  (6th Cir. 1992); United States v. Hughes, 895 F.2d 1135,                                    _____________    ______          1143 (6th Cir. 1990); United States v. Vamos, 797 F.2d 1146, 1152                                _____________    _____          (2d Cir. 1986), cert. denied, 479 U.S. 1036 (1987); United States                          ____________                        _____________          v. Norris,  780 F.2d 1207, 1209 (5th Cir. 1986); United States v.             ______                                        _____________          Lawson, 682 F.2d 480, 482 (4th  Cir.), cert. denied, 459 U.S. 991          ______                                 ____________          (1982); United States  v. Hayes,  595 F.2d 258,  260 (5th  Cir.),                  _____________     _____          cert. denied, 444  U.S. 866  (1979); United States  v. Kirk,  584          ____________                         _____________     ____          F.2d 773, 784 (6th Cir.), cert. denied, 439 U.S. 1048 (1978); see                                    ____________                        ___          also 21  C.F.R.   1306.04(a) (explicitly  subjecting a pharmacist          ____          to  the  penalties  of  section  841  if  he  knowingly  fills  a          prescription  "not issued  in  the usual  course of  professional          treatment"); cf.  21 U.S.C.   822(b)  (exempting pharmacists from                       ___          section  841  but  only  "to  the   extent  authorized  by  their          registration").                     This  standard   might  mean  that   a  drug-dispensing          pharmacist does not  violate section  841 if he  believes that  a          customer (even a  customer who lacks a  valid prescription) needs          the  drugs for legitimate medical treatment.  Cf. Moore, 423 U.S.                                                        __  _____          at  138-39 (implicitly  approving a  jury instruction  explaining          that a physician could be  convicted if he knowingly  distributed          controlled drugs  "other than in  good faith .  . . in  the usual          course of a professional practice"); United States v. Seelig, 622                                               _____________    ______          F.2d 207, 213 (6th Cir.) (stating that section 841(a)(1) requires                                          10          proof beyond a reasonable doubt "that the drugs were  distributed          outside  the  usual  course  of  professional  practice"),  cert.                                                                      _____          denied, 449 U.S. 869 (1980).   It is certainly arguable that,  at          ______          the  very least,  that  kind of  "good  faith" case  would  skirt          section 841's  heartland.  But if  the drug-dispensing pharmacist          knows that a  customer not  only lacks a  valid prescription  but          also will not use the drugs for legitimate medical purposes, then          section  841 applies in full flower and treats the dispenser like          a  pusher.   See  Moore,  423  U.S. at  142-43.    Indeed, it  is                       ___  _____          difficult to find a relevant difference between a pharmacist who,          without proper prescriptions, knowingly supplies a drug addict or          trafficker with narcotics, and any other drug dealer who does the          same.                    Another line of reasoning leads to the same conclusion.          The unlawful-drug-prescribing statute, 21  U.S.C.   843, is aimed          for the  most part at a  pharmacist's knowing failure to  use and          maintain proper  prescription  forms, registration  numbers,  and          kindred  records.   Such  a failure  might,  or might  not,  come          accompanied with  the pharmacist's  knowing sale of  narcotics to          addicts  or traffickers.    The pharmacist,  for example,  simply          might  have failed to report his drug supply properly, see, e.g.,                                                                 ___  ____          United States v.  Sterber, 846  F.2d 842  (2d Cir.  1988); or  he          _____________     _______          might have  acquired the narcotics improperly,  see, e.g., United                                                          ___  ____  ______          States v. Pastor, 557 F.2d 930  (2d Cir. 1977); or, he might have          ______    ______          used an expired DEA registration number in filling a prescription          for a customer whom he believed legitimately needed the drugs for                                          11          medicinal purposes, see, e.g., United States v. Carranza, 632  F.                              ___  ____  _____________    ________          Supp. 1030 (S.D.N.Y. 1986).   The provision's legislative history          indicates  that Congress intended it chiefly  to address a threat          to the integrity of  the regulatory system, i.e., the  system for                                   __________         ____          administrative control of the legitimate drug industry.   See 116                                                                    ___          Cong.  Rec.  996-98  (1970) (statements  of  Sen.  Dodd  and Sen.          Griffin);  see  also  Moore, 423  U.S.  at  135.   The  statute's                     ___  ____  _____          comparatively low  maximum penalty  provision suggests  the same.          Compare 21 U.S.C.    843(c) (48-month maximum) with id.    841(b)          _______                                        ____ __          (life imprisonment maximum).                    Our  search of  the  case law  confirms the  regulatory          thrust  of section  843.   Close  perscrutation reveals  that the          government has used section  843, in separate prosecutions, where          regulatory, not  drug-trafficking, problems  are at issue.   See,                                                                       ___          e.g.,  Sterber, 846 F.2d at  842; United States  v. Cantor, Crim.          ____   _______                    ______ ______     ______          No.  91-00021, 1991 WL 161017 (E.D. Pa. Aug. 14, 1991); Carranza,                                                                  ________          632 F.  Supp. at 1031.   The fact  that the  government sometimes          charges  violations  of  both  sections  841  and  843  in  drug-          trafficking  cases, see,  e.g., Vamos, 797  F.2d at  1148; United                              ___   ____  _____                      ______          States  v. Devous, 764 F.2d  1349, 1351 (10th  Cir. 1985); United          ______     ______                                          ______          States  v. Goldfine, 538 F.2d  815,817 (9th Cir.  1976), does not          ______     ________          show the contrary, for in such instances,  if the same conduct is          involved, section 843 would be a lesser included offense.                      In the  case before us, the government claimed that the          defendants  systematically and  knowingly  sold  narcotic  drugs,          without proper  prescriptions, to  drug addicts and  drug dealers                                          12          whom they knew had no legitimate medical need for the drugs.  The          court  instructed the jury that it could acquit the defendants if          it found  that  they had  acted  in "good  faith," but  the  jury          declined to do  so; it thereby  accepted the government's  claims          that  the defendants acted with  knowledge and evil  intent.  For          this  reason, one  cannot  easily characterize  their conduct  as          involving, simply or only,  the kind of record-keeping violations          at which section 843  seems basically aimed, and which  appear to          provide the  rationale for its 48-month  ceiling on imprisonment.          Thus, the district court's view that the defendants' conduct fell          within  the "heartland" of section  843, but not  of section 841,          reflects a  misunderstanding of the  basic objectives of  the two          statutes and their interplay.2   That being so, we must set aside          the defendants'  sentences and return the  case for resentencing.                                        ____________________          2Our determination  that the defendants' conduct,  as charged and          proven, fell within the "heartland" of section 841 bears a strong          analytical resemblance to our recent decision in United States v.                                                           _____________          LeBlanc, ___ F.3d ___, (1st Cir. 1994) [No. 93-1998].  There, the          _______          district court,  confronted  with bookmakers  who  had  laundered          gambling  proceeds and  who stood  convicted of  violating, inter                                                                      _____          alia,  18  U.S.C.      1956-1957  (proscribing  "structuring"  of          ____          certain  monetary transactions),  departed downward  to make  the          sentences  commensurate  with  the  relatively  modest  GSR  that          customarily  characterized gambling  offenses  (rather  than  the          relatively  steep   GSR  that  customarily   characterized  money          laundering  offenses).  The  court premised the  departure on the          ground  that the  money laundering  offenses "stem[med]  from the          prior  specified  unlawful  activity  of  operating  an   illegal          gambling business,"  and,  therefore, fell  "outside  . .  .  the          'heartland' of  the money  laundering  guidelines."   Id. at  ___                                                                ___          [slip  op.  at  11].    We  reversed,  holding  that,  since  the          proscribed conduct  "not only comes  within the plain  meaning of          [the  anti-structuring statute],  but  also was  within the  full          contemplation  of Congress when it enacted  that statute," id. at                                                                     ___          ___  [slip op.  at 15],  the court's  stated ground  of departure          could not be upheld, id. at 16-17.  So it is here.                               ___                                          13          See Rivera, 994 F.2d  at 951 (explaining that an  appellate court          ___ ______          will review a purely legal determination without deference to the          district court).                    Counsel for  the defendants have argued  that there are          several other special features of  this case that make  departure          appropriate.   We express no  view about whether  that is,  or is          not, so.  Departure decisions are for the sentencing court in the          first  instance.  On remand,  the district court  remains free to          consider departure for other reasons.  See id. at 956.                                                 ___ ___                                         III                           Nicholas Limberopoulos's Appeal                           _______________________________                    In Nicholas Limberopoulos's appeal, he claims primarily          that the district court did not correctly calculate the GSR (from          which  it  then  departed).    We  find  no legal  error  in  the          challenged calculations.                    1.  The Number  of Pills.  The guideline  applicable to                        ____________________          drug  trafficking  conspiracies3 relates  base offense  levels to          the  amount   of   "heroin-equivalent"  drug   involved  in   the          conspiracy.  See  U.S.S.G.    2D1.1 (Drug Quantity  Table).   The                       ___          amount of heroin-equivalent drug depends upon the total weight of          the Percodan, Percocet, and other pills, which is  then converted          into  heroin  equivalents.    See,  id.,  comment.  (n.10)  (Drug                                        ___   ___                                        ____________________          3Technically,  there are  two statutes  involved in the  count of          conviction here.  21 U.S.C.   846 outlaws conspiracies to violate          drug  trafficking laws, while 21  U.S.C.   841  is the particular          drug trafficking law that these defendants allegedly conspired to          violate.  For ease in reference, we shall refer to the conspiracy          as a "section 841 conspiracy."                                          14          Equivalency  Table).   Recognizing  that, in  this instance,  the          total weight of the  pills depends upon the total number of pills          for which each defendant  is responsible,  Nicholas Limberopoulos          argues that the  district court wrongly  attributed to him  pills          for which William, not he, should have been held accountable.  He          rests this conclusion  on the  premise that the  jury might  have          thought  that he was involved  in a conspiracy  not with William,          but  with others; and  that, if the  jury did think  so, it would          also have thought that William's pills had nothing to do with the          conspiracy underbracing Nicholas's conviction.                    The  problem with  this thesis  is that  the guidelines          normally  leave  to  the  sentencing  judge,  not  the jury,  the          determination of the "conduct"  that is "relevant" to sentencing.          See U.S.S.G.    6A1.3.   Nothing the jury  decided prevented  the          ___          judge  from finding  a conspiracy  between Nicholas  and William.          Furthermore,  the  evidence  to  support  a  finding  of  such  a          conspiracy, whether by judge or jury, is ample.                    The  evidence showed, for  example, that Nicholas owned          Limby's Pharmacy.  He worked there on weekends and some weekdays.          William, his son, worked there  most weekdays and occasionally on          weekends.   The only  other employee involved  in drug-dispensing          was a clerk.  The unlawful sales involved a large number of pills          and took place at frequent intervals over a period of two  years.          The clerk told a  drug-addict customer (who had obvious  physical          symptoms of drug withdrawal)  that it did not matter  if Nicholas          knew that  the clerk was  selling drugs to  the addict without  a                                          15          proper prescription.  From this evidence the court (and the jury,          too) might  reasonably have  concluded that Nicholas  and William          each knew  the other was  dispensing drugs  unlawfully, and  that          each agreed  to help the  other do so  through the ownership  and          operation of the pharmacy, the maintenance of  false records, and          the  like.  Such an  implicit agreement amounts  to a conspiracy.          See, e.g., Direct Sales Co.  v. United States, 319 U.S.  703, 714          ___  ____  ________________     _____________          (1943).   The  court,  therefore, could  reasonably attribute  to          Nicholas the pills  that William  sold, having found  them to  be          "part of  the same  . .  . common  scheme or plan."   U.S.S.G.             1B1.3(a)(2).    By  like  token, the  court  could  attribute  to          Nicholas  pills  that  William  improperly  dispensed  prior   to          February  10,  1987 (the  earliest  date of  a  prescription that          Nicholas canceled).                    2.   The Weight.   Nicholas also argues  that the court                         __________          erred  in  calculating drug  weight by,  in effect,  weighing the          entire  pill, and, thus, counting the weight of both narcotic and          nonnarcotic ingredients (increasing the  weight, say, of a single          Percocet pill from roughly five one-thousandths to five-tenths of          a gram).   In doing so,  however, the court  simply followed  the          instructions  of the  Sentencing Commission,  which  tells judges          that the                    scale amounts for  all controlled  substances                    refer to the  total weight of  the controlled                    substance.  Consistent with the provisions of                    the Anti-Drug Abuse Act,  if any mixture of a                    compound  contains any detectable amount of a                    controlled  substance,  the entire  amount of                    the  mixture or compound  shall be considered                    in measuring the quantity.                                          16          U.S.S.G.   2D1.1 (Drug Quantity Table, n.*).                    All seven circuits that have considered the matter have          held  that this  language  (or the  language  of a  substantially          similar  amended version of the note, see id. (Nov. 1989)), means                                                ___ __          what  it says, namely, that the sentencing court must include the          weight of an entire  pharmaceutical pill and not just  the weight          of  the  active  narcotic  ingredients.   See  United  States  v.                                                    ___  ______________          Crowell,  9 F.3d  1452, 1454  (9th Cir.  1993); United  States v.          _______                                         ______________          Young,  992 F.2d  207,  209 (8th  Cir.  1993); United  States  v.          _____                                          ______________          Blythe,  944  F.2d 356,  362 (7th  Cir.  1991); United  States v.          ______                                          ______________          Shabazz, 933 F.2d 1029, 1032-33 (D.C. Cir.), cert. denied, 112 S.          _______                                      ____________          Ct. 431 (1991);  United States  v. Lazarchik, 924  F.2d 211,  214                           _____________     _________          (11th Cir.), cert. denied, 112 S. Ct. 96 (1991); United States v.                       ____________                        _____________          Meitinger, 901 F.2d 27, 29 (4th Cir.), cert. denied, 498 U.S. 985          _________                              ____________          (1990);  United  States v.  Bayerle, 898  F.2d  28, 31  (4th Cir.                   ______________     _______          1989),  cert.  denied,  498 U.S.  819  (1990);  United States  v.                  _____________                           _____________          Gurgiolo,  894 F.2d 56,  61 (3d Cir.  1990).  We  agree with this          ________          authority.                    The defendants sing one  esoteric tune which, they tell          us, the other courts did not fully consider.  They point out that          the instruction  we have quoted  prefaces its statement  with the          words "[c]onsistent  with the  provisions of the  Anti-Drug Abuse          Act."   They  then assert  that that  Act specifies  weighing the          "entire mixture  or compound" for  street drugs, such  as heroin,                                             ______          but says nothing about pharmaceutical drugs.   The defendants add                                 ______________          that the rationale the Supreme Court has identified as underlying                                          17          the   use  of  gross,  as  opposed  to  net,  weights     namely,          maintaining  serious punishment  for  street  pushers of  diluted          mixtures, see Chapman  v. United  States, 111 S.  Ct. 1919,  1927                    ___ _______     ______________          (1991)    does not make sense, and, hence, should not apply, when          pharmaceutical drugs are at issue.                    The chief problem with  this construct is that it  does          not  show  an inconsistency  between the  Act and  the Sentencing          Commission's instruction.  The  Act does not forbid use  of gross          pharmaceutical drug weights  as a  way to measure  just how  many          pills,  say of Percodan, warrant  the same punishment  as a given          amount of heroin.   Nor have defendants  convinced us that it  is          irrational to  tie these  punishment equivalencies to  gross pill          weight,  rather than  applying some  mechanical operation  to net          weight  (say, multiplying  active ingredient  weight by  100) and          thereby  reaching  approximately  the same  punishment  results.4          Nor, finally, is it clear to us what the use of  gross weight for          purposes   of  conversion  has  to  do  with  the  existence,  or          nonexistence, of street pushers of pharmaceutical drugs.                                          IV                            William Limberopoulos's Appeal                            ______________________________                    William's   appeal   repeats   various  of   Nicholas's          arguments,  which  we  reject   for  reasons  previously  stated.          William  also makes  two fresh  arguments.   First, he  points to          Bruton v. United States, 391 U.S. 123 (1968), a case in which the          ______    _____________                                        ____________________          4Other  circuits have  found  this approach  to be  rational and,          consequently,  have rejected  similar  importunings.   See, e.g.,                                                                 ___  ____          Crowell, 9 F.3d at 1454; Shabazz, 933 F.2d at 1036-37.          _______                  _______                                          18          Court held  that admission of incriminating  statements made out-          of-court by  a nontestifying codefendant (unavailable  for cross-          examination)  entitled  the defendant  to  a  new, and  separate,          trial.   He then claims  that three such  pieces of evidence were          admitted  against him  here, namely,  (1) portions  of Nicholas's          grand jury testimony, (2)  a false exculpatory statement made  by          Nicholas  to his attorney, and (3) Nicholas's action in giving up          Limby's DEA  license,  which in  William's  view amounted  to  an          admission of guilt.                     It is unclear whether William objected to this evidence          at the  time of its admission (though he did move for a severance          with regard to  the grand jury testimony before  trial).  We have          nonetheless reviewed  the record  before us to  determine whether          this  evidence is of  the sort to which  Bruton applies, that is,                                                   ______          evidence that  has the "'powerfully incriminating'  effect of one          accomplice  pointing  the  finger directly  at  another,  without          subjecting  himself  to  cross-examination."   United  States  v.                                                         ______________          DiGregorio, 605 F.2d  1184, 1190 (1st Cir.)  (quoting Bruton, 391          __________                                            ______          U.S. at 135), cert. denied, 444 U.S. 937 (1979);  see also United                        ____________                        ___ ____ ______          States v.  Nason, 9 F.3d 155, 160  (1st Cir. 1993), cert. denied,          ______     _____                                    ____________          114 S. Ct. 1331 (1994); United  States v. Barnett, 989 F.2d  546,                                  ______________    _______          558 (1st Cir.), cert. denied, 114 S. Ct. 148 (1993).  We conclude                          ____________          that it is not.                      The grand  jury testimony  that the government  read at          trial does not implicate William.  The remaining portions of that          testimony suggest that  some of the false prescriptions  may have                                                                   ___                                          19          been  in  William's handwriting,  but  they add  little  to other          evidence  on  this  point.    Similarly,  Nicholas's  exculpatory          statements  to his lawyer and his surrender of Limby's license do          not directly show  William's guilt.   Rather, their relevance  in          this  respect   requires  a  considerable   chain  of  subsidiary          inferences (i.e.,  that the exculpatory statement  was an obvious                      ____          attempt at  deceit and coverup, or the surrender of the license a          kind of confession, both  showing Nicholas's consciousness of his          own   guilt,  which   knowledge,  through   association,  implies          William's guilt  as well).  Such  out-of-court statements neither          name  nor impugn William directly, and thus cannot be supposed to          have  implanted in  the  jurors' minds  the  kinds of  powerfully          incriminating impressions  against which  Bruton  protects.   See                                                    ______              ___          Richardson v. Marsh, 481 U.S. 200, 208-11 (1986) (explaining that          __________    _____          Bruton applies  to evidence  incriminating on  its  face, not  to          ______          inferential  incrimination,  which  can   be  cured  by  limiting          instructions);  cf.  DiGregorio, 605  F.2d  at  1190 (ruling  the                          __   __________          unadorned fact that a codefendant's out-of-court admission tended          to corroborate the government's case against the defendant to  be          insufficient to trigger Bruton).  Again, in context, this out-of-                                  ______          court evidence is weak, adding little, if anything, to the weight          of the remaining evidence.   Nor can we find anything  else about          the  admission of this evidence  that deprived William  of a fair          trial, "resulting in a miscarriage of justice."  United States v.                                                           _____________          McLaughlin, 957 F.2d 12,  18 (1st Cir. 1992)  (citation omitted).          __________          Consequently, the law does not require relief on this ground.                                            20                    Second,  William  complains that  the  sentencing court          should  have  ordered a  mental  examination  under 18  U.S.C.             3552(c).   That provision, however,  says that  a district  court          "may" order a  psychological examination of  the defendant if  it           ___          "desires  more information than is otherwise available to it as a          basis  for determining  the mental  condition of  the defendant."          Id.  (emphasis supplied).   In  this case,  the court  was keenly          ___          aware of  William's psychological  difficulties.  The  records he          placed before the  district judge  showed a history  of drug  and          alcohol  abuse   as  well  as  personality   disorders,  such  as          narcissism.  The  judge could reasonably have  concluded that the          first set of matters  was not directly related to  the sentencing          decision, see U.S.S.G.    5H1.4, p.s., while a mental examination                    ___          would  add little or  nothing of  value to  what it  already knew          about the  second.   In our  view, the court  did not  exceed its          discretionary authority to decide not to order the examination.5                                          V                                          V                                      Conclusion                                      Conclusion                                      __________                    We  need  go  no   further.    Though  the  combination          comprises a bitter  pill, defendants' convictions  appear lawful,          but their  reduced sentences appear to  have been inappropriately          conceived.   Consequently, for the  reasons we have discussed, we          affirm the convictions but vacate the defendants'  sentences.  We                                        ____________________          5We  note,  moreover,  that  William  does  not  claim  financial          inability  to arrange for such an examination at his own expense.          Cf.  18  U.S.C.     3006A(e)(1) (instructing  courts  to  appoint          __          "investigative, expert,  or other services"  where such  services          are necessary and the defendant cannot otherwise afford them).                                          21          remand  the  matter  to   the  district  court  for  resentencing          consistent with this opinion.          So ordered.          ___________                                          22
