           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 19, 2007
                                     No. 07-30341
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

JAMES T HILL

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 5:06-CR-50013-1


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       James T. Hill appeals his sentence following his guilty plea conviction of
one count of healthcare fraud in violation of 18 U.S.C. §§ 2, 1347, and one count
of distributing or dispensing or causing to dispense a controlled substance, when
said act of dispensing and causing to be dispensed was not in the usual course
of professional practice and not for a legitimate medical purpose in violation of
18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Hill challenges the amount of drugs
attributed to him in calculating his sentence. Hill also challenges the district


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-30341

court’s imposition of a non-Guideline sentence as to the latter count - 200
months of imprisonment - which was 49 months above the advisory guideline
range maximum of 151 months as calculated in the presentence report.
      We review the sentencing court’s factual findings for clear error and its
“interpretation and application of the sentencing guidelines de novo.” United
States v. Ponce, 917 F.2d 841, 842 (5th Cir. 1990). “The sentencing judge is
entitled to find by a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range and all facts relevant to the
determination of a non-Guidelines sentence.” United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005). “As a general rule, information in the pre-sentence
report is presumed reliable and may be adopted by the district court without
further inquiry if the defendant fails to demonstrate by competent rebuttal
evidence that the information is materially untrue, inaccurate or unreliable.”
United States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002); see United States
v. Lopez-Urbina, 434 F.3d 750, 767 (5th Cir. 2005).
      Hill argues that the district court erred when it based his offense level and
sentence on conduct that was not part of the same course of conduct or common
scheme or plan as the offense of conviction. In determining a defendant’s base
offense level, the district court may consider drug quantities not specified in the
count of conviction if they are part of the defendant’s relevant conduct. United
States v. Burke, 431 F.3d 883, 888 (5th Cir. 2005). Relevant conduct includes
acts that were part of a “common scheme or plan” or the “same course of
conduct” as the offense of conviction. U.S.S.G. § 1B1.3(a)(2). Hill failed to
present any evidence to rebut the information contained in the presentencing
report or the evidence adduced at sentencing by Government witnesses
regarding the amount of drugs attributable to him. The record reflects that Hill
wrote prescriptions for addictive painkillers to patients he had not examined and
also billed the patients and their insurance companies. At all times, Hill’s
victims were his patients and Hill acted with a common purpose - to dispense

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                                  No. 07-30341

controlled substances in a manner not consistent with a legitimate medical
purpose and not within the usual course of a physician’s practice. Accordingly,
the district court’s factual-finding regarding the drug quantity was not clearly
erroneous in light of the record as whole. See United States v. Caldwell, 448
F.3d 287, 290 (5th Cir. 2006).
      Hill also argues that the district court failed to properly consider the
factors in 18 U.S.C. § 3553(a) when it imposed a non-Guideline sentence.
Contrary to Hill’s assertions, the district court made specific findings regarding
the nature and circumstances of the offense as well as the history and
characteristics of the defendant when it found that Hill placed his patients at
risk when he left the country and permitted non-medically trained staff to fill
out pre-signed blank prescriptions and also permitted them to distribute post-
dated prescriptions. As the district court found, in light of the degree of the
abuse of his position of trust and his medical license, the court also considered
the need for the sentence to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment. The district court found
that Hill’s behavior was more than just abusing his position of trust as a doctor,
he was a “drug dealer with a medical license.” The court also considered the
need for adequate deterrence and warned other doctors of the dangers of
practicing medicine in the manner the defendant practiced.              The court
considered the need to protect the public from further crimes of the defendant
in light of the harm that Hill had caused the community and the profession of
medicine. The court deviated because it felt that the facts of case fell outside the
heartland of cases. See United States v. Sanchez-Ramirez, 497 F.3d 531, 535-36
(5th Cir. 2007). Hill has not shown that the district court misapplied the
Guidelines, failed to consider the § 3553(a) factors, failed to give reasons for the
sentence, or considered improper factors in imposing the sentence. Therefore,
he has not shown that the sentence imposed was unreasonable. See id at 536.
      AFFIRMED.

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