                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-4218


UNITED STATES OF AMERICA,

                      Plaintiff - Appellee,

          v.

PERRY REESE, III,

                      Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (7:08-cr-00034-FL-1)


Submitted:   June 23, 2011                    Decided:   August 2, 2011


Before WYNN and      DIAZ,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C, Covington,
Kentucky, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, David A. Bragdon, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
            Following a five-day jury trial, Perry Reese, III, was

convicted on two counts of dispensing a controlled substance in

violation of 21 U.S.C. § 841(a)(1) and one count of conducting

the affairs of an enterprise through a pattern of racketeering

activity in violation of 18 U.S.C. § 1962(c).                         The district

court sentenced Reese to 240 months’ imprisonment.

            Reese     challenges     his      convictions     and     sentence     on

several grounds.          First, he appeals the district court’s denial

of his motion for a judgment of acquittal.                 Alternatively, Reese

argues    that    the     racketeering        conviction     should    be   vacated

because the district court erred in instructing the jury.                        With

respect to the 240-month sentence imposed by the district court,

Reese argues first that the district court erred in calculating

the drug weight used in determining his Sentencing Guidelines

range     and    second     that   the   sentence      was     procedurally       and

substantively       unreasonable.        For     the   following      reasons,     we

affirm.



                                         I.

                                         A.

            Reese first argues that the district court erred in

denying his motion for judgment of acquittal pursuant to Rule 29

of the Federal Rules of Criminal Procedure, contending that the

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government’s         evidence         was       insufficient              to         prove      that     he

unlawfully      dispensed         controlled               substances.                    We   review     a

district court’s denial of a Rule 29 motion for judgment of

acquittal de novo, United States v. Alerre, 430 F.3d 681, 693

(4th Cir. 2005), and are required to sustain the jury’s verdict

if, viewing the evidence in the light most favorable to the

government,      “a    rational        trier         of     fact      could          have      found    the

essential elements of the charged offense beyond a reasonable

doubt,” United States v. Singh, 518 F.3d 236, 246 (4th Cir.

2008).     In    reviewing        a    sufficiency               claim,         we    “must     consider

circumstantial as well as direct evidence, allow the government

the benefit of all reasonable inferences from the facts proven

to those sought to be established,” United States v. Tresvant,

677 F.2d 1018, 1021 (4th Cir. 1982), and “may not weigh the

evidence or review the credibility of the witnesses . . . those

functions are reserved for the jury,” United States v. Wilson,

118 F.3d 228, 234 (4th Cir. 1997).

           Title       21     U.S.C.        §    841       provides            that       “[e]xcept      as

authorized      by    this    subchapter,             it    shall         be    unlawful         for    any

person    knowingly          or   intentionally                  .    .     .        to    manufacture,

distribute, or dispense . . . a controlled substance.”                                          However,

medical    doctors          registered           by        the       Attorney             General      “are

authorized to write prescriptions for or to otherwise dispense

controlled      substances,           so        long       as        they       comply         with     the

                                                 3
requirements of their registration.”                 United States v. Hurwitz,

459 F.3d 463, 475 (4th Cir. 2006) (citing 21 U.S.C. § 822(b)).

Regulations promulgated by the Attorney General provide “that a

prescription for a controlled substance is effective only if it

is ‘issued for a legitimate medical purpose by an individual

practitioner     acting   in    the    usual       course     of   his    professional

practice.’ ”     Id. (citing 21 C.F.R. § 1306.04(a)).

           Thus, to convict Reese of the two 21 U.S.C. § 841

charges,   the    government     was    required         to   prove      that   (1)    he

“distributed or dispensed a controlled substance,” (2) “he acted

knowingly and intentionally,” and (3) his “actions were not for

legitimate     medical    purposes       in        the    usual     course      of    his

professional medical practice or [were] beyond the bounds of

medical practice.”        United States v. Singh, 54 F.3d 1182, 1187

(1995) (quoting United States v. Tran Trong Cuong, 18 F.3d 1132,

1141 (4th Cir. 1994)).

           As to the third element of the offense, Reese contends

that the government was required to prove that he distributed

controlled     substances       outside        the       usual     course       of    his

professional practice and not for a legitimate medical purpose.

Reese   argues    that,    at   most,        the    government’s         evidence     was

sufficient to prove the former but not the latter.

           We do not read the relevant statute and regulations as

requiring the proof urged by Reese.                 See, e.g., United States v.

                                         4
Hitzig, 63 F. App’x 83, 87 (4th Cir. 2003) (“We reject [the

defendant’s] contention that the district court erred because it

did not instruct the jury that the government was required to

prove that he both dispensed the controlled substances not for a

legitimate medical purpose in the usual course of professional

medical practice and in a manner that is beyond the bounds of

professional     medical    practice.”).               Rather,         “[o]ur    precedent

makes it clear that the standard for criminal liability is that

the   physician’s      conduct    in       dispensing       a    controlled        substance

falls outside the boundaries of the [physician’s] professional

practice.    While the government may meet its burden of proving

guilt   by   showing     that      a       physician      dispensed         a   controlled

substance for an illegitimate purpose, the government is not

required to make such a showing.”                    Id. (internal citation and

quotation    omitted).         Accord       Singh,     54       F.3d   at   1187     (“[T]he

evidence must show that the defendant’s actions were not for

legitimate     medical     purposes          in    the      usual       course      of   his

professional practice or [were] beyond the bounds of medical

practice.”) (emphasis added; internal quotation omitted); Tran

Trong   Cuong,    18    F.3d     at    1138       (“The     standard        used    by   the

[district]   court      ‘without       a    legitimate          medical     purpose’     does

appear to be more strict than that required by Moore [423 U.S.

122 (1975)] and therefore was to defendant’s benefit.”).                                 But

see United States v. Rosenberg, 585 F.3d 355, 357 (7th Cir.

                                             5
2009) (“[I]n order for a prescription to be unlawful it must not

have    a    legitimate       purpose      and        must    be     dispensed       outside    the

usual course of medical practice.”); United States v. Rosen, 582

F.2d    1032,       1033   (5th     Cir.    1978)       (holding         that     to   convict    a

doctor under 21 U.S.C. § 841 the government must prove that he

acted “other than for a legitimate medical purpose and in the

usual course of his professional practice”).                                In any event, the

district court instructed the jury on the heightened standard

proposed by Reese and the government’s evidence at trial was

more than sufficient to support the jury’s verdict.

               With       respect    to     Count        I     of     the    indictment,        the

government’s evidence showed that Christy Brewington, a special

agent       with    the    North    Carolina          State        Bureau    of   Investigation

(“SBI”), made three undercover visits to Reese’s office while

posing as a patient, after the SBI had been tipped off that

Reese       was     selling     prescriptions                and     controlled        substances

directly       to     patients.           Reese       failed        to     perform     any   basic

diagnostic questioning or examination of Agent Brewington over

the course of her three visits, but rather simply complied with

Brewington’s          request       for     pain        medication          (prescribing        her

OxyContin during her first and third visits, and Percocet during

her     second      visit),     instructed            her     on     the    “rules”     in     case

Brewington was questioned about the prescriptions, and collected

payment.          The government’s evidence also showed that, following

                                                  6
each    visit,    Reese       falsified    Brewington’s         patient   examination

forms to reflect medical tests that were never conducted and

discussion of pain and medications that never occurred.

            As to Count II, involving Reese’s conduct with respect

to   Elizabeth      Sanders,      the    government’s       evidence      showed    that

Reese conducted a limited physical examination of Sanders during

her first office visit, and thereafter abandoned any diagnostic

testing while increasing her prescriptions to about 20 pills of

Percocet per day.             The evidence also showed that Sanders paid

Reese   cash     for   prescriptions        and    gave   him    rings,    watches,   a

generator, and other items that Reese told her he wanted from

the pawnshop where she worked, that Sanders met Reese at various

locations to purchase the prescriptions, which involved payment

of Sanders’s insurance co-pay as well as additional cash fees,

and that Reese concealed some of the prescriptions he wrote to

Sanders by writing them in the names of her family members,

including Sanders’s teenage daughter.

            Beyond      these     specific        instances,      the     government’s

evidence also showed that Reese conducted limited or no physical

examinations of other patients and sold them prescriptions--and

in   some   cases      sold    them     drugs     directly.       Reese    also    wrote

prescriptions in the names of his patients’ family members to

avoid triggering the suspicion of the authorities.                        One patient

testified      that    Reese     told     him   to   chew     OxyContin     pills   for

                                            7
quicker effect.       Moreover, Dr. Mark Romanoff, a pain management

specialist,      opined    that   Reese’s    actions     in    (1)    failing     to

conduct    proper     examinations,     diagnosis,       and     follow-up,      (2)

issuing    patients       prescriptions     in   others’       names,      (3)   re-

dispensing pills that patients had returned to him, (4) selling

pills directly to patients without a dispensing license, (5)

charging   for    a   prescription     without   seeing       the    patient,    (6)

routinely prescribing medications outside of the office setting,

(7)   prescribing     patients    up   to   20   pills     per      day,   and   (8)

recommending that one of his patients chew OxyContin, were all

inappropriate behaviors and beyond the bounds of professional

medical practice.

           Viewing this evidence, as we must, in the light most

favorable to the government, we conclude that a rational trier

of fact would have little trouble finding that Reese’s actions

were outside the scope of medical practice and, even though the

government was not required to so prove, not for any legitimate

medical purpose.       Accordingly, the district court did not err in

denying Reese’s motion for judgment of acquittal.



                                       B.

           Reese next argues that the district court erred when

it declined to instruct the jury that, for purposes of Count III

alleging a violation of the Racketeer Influenced and Corrupt

                                        8
Organizations         Act    (“RICO”),        the    enterprise        alleged       by     the

government to have been engaged in criminal activity must have

an existence separate from Reese.                        The enterprise alleged in

this case was Roseboro Urgent Care, P.A., out of which Reese ran

his medical practice and of which Reese was the sole proprietor

and the only physician.              We review a “district court’s decision

to   give   or   refuse      to    give   a       jury    instruction       for    abuse     of

discretion.”         United States v. Passaro, 577 F.3d 207, 221 (4th

Cir. 2009) (citing United States v. Moye, 454 F.3d 390, 397-98

(4th Cir. 2006)).            “We review a jury instruction to determine

whether, taken as a whole, the instruction fairly states the

controlling law.”            Moye, 454 F.3d at 398 (internal quotation

omitted).      An error in a jury instruction will warrant reversal

“only when the error is prejudicial based on a review of the

record as a whole.”           United States v. Ellis, 121 F.3d 908, 923

(4th Cir. 1997).

              Reese    contends      that      the       district    court     abused       its

discretion when it eliminated the following sentence from the

proposed      RICO     instruction:       “The       enterprise        must       have     some

separate existence from the defendant, that is, the defendant

cannot   be    both    the    RICO    defendant          and   the   RICO     enterprise.”

Reese    argues       that    the    government           must      prove     that       “[t]he

enterprise must be distinct from the persons alleged to have

violated § 1962(c).”              Palmetto State Medical Ctr. v. Operation

                                              9
Lifeline, 117 F.3d 142, 148 (4th Cir. 1997).                                 The government

does   not     contest     this      point,        but    argues      that   a    distinction

between the enterprise and the defendant is established where

the enterprise is a legal entity and the defendant is a person.

             Viewing the RICO instruction as a whole, we conclude

that the district court correctly instructed the jury that the

government must prove the existence of an enterprise, including

any    legal      entity      such      as     a    partnership,         corporation,       or

association,       that     the      enterprise           was    engaged     in   interstate

commerce, and that the defendant was associated with or employed

by the enterprise.              Thus, the district court fairly stated the

controlling       law     and     did    not       err     by    omitting     the    proposed

statement from the instruction.



                                               C.

             Reese next challenges his sentence, arguing that the

district     court      improperly           calculated         the   quantity      of    drugs

attributable to his conduct by failing to exclude prescriptions

written in good faith.               We review the district court’s factual

findings     as    to   the     application          of    the    Guidelines        for   clear

error.     United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.

1989).       Finding no clear error with respect to either point

Reese presses on appeal--that the district court’s estimate as

to the drug quantity attributable to Reese was not conservative

                                               10
enough    and      that     the      district    court        should    have    excluded       the

quantity      of      drugs         that     Reese    argues      were     prescribed         for

legitimate       medical            purposes--we      affirm      the     district        court’s

calculations.

              Finally,          Reese       argues    that      his    sentence       was    both

procedurally          and       substantively           unreasonable.                We     review

sentences “under a deferential abuse of discretion standard.”

United States v. Grubbs, 585 F.3d 793, 803 (4th Cir. 2009).

First, we review a sentence to “ensure that the district court

committed no significant procedural error, such as failing to

calculate       (or      improperly          calculating)        the    Guidelines        range,

treating the Guidelines as mandatory, [or] failing to consider

the § 3553(a) factors.”                    Gall v. United States, 552 U.S. 38, 51

(2007).         Next,          we     review    for     substantive        reasonableness,

“examin[ing] the totality of the circumstances to see whether

the sentencing court abused its discretion in concluding that

the   sentence        it    chose       satisfied       the    standards       set    forth    in

§ 3553(a).”        United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010).

              Reese’s          presentence      report        suggested    a    base      offense

level    of   32    on      the      ground    that   Reese      distributed         controlled

substances      with       a    total       marijuana    equivalency        exceeding         1000

kilograms.          With        six    levels    of     enhancements,          two    each    for

abusing a position of public or private trust, using a minor to

                                                11
commit the offense, and obstructing justice, the total offense

level was 38. 1       Because Reese had no prior criminal history, his

Guidelines sentence range was 235 to 293 months’ imprisonment.

Reese      pressed    for    a   downward     departure          from    the    Guidelines

sentence, based on mitigating circumstances that he argued were

not adequately considered by the Guidelines.                       The district court

rejected      this    argument      and    sentenced        Reese       to    240    months’

imprisonment,        the    effective     Guidelines        sentence         based   on   the

statutory maximum for the two § 841(a)(1) counts.

              Reese        argues     that        the      district          court     erred

procedurally by declining “to consider grounds founded in the

age   of    the   defendant,        his   family        connections      and    ties,     his

military service, his lack of a criminal history, or his public

service, or other reasons offered.”                 J.A. 819.       We disagree.

              The district court declined to consider these factors

when assessing Reese’s argument for a downward departure from

the Guidelines sentence.              As Reese conceded during sentencing,

the Guidelines specifically discourage a downward departure on

the       basis      of     these     factors           except     in        extraordinary

      1
      Reese’s presentence report originally calculated a total
offense level of 42, having included an additional four points
on the basis that Reese was an organizer or leader of a criminal
activity involving five or more participants.       However, the
government agreed that this adjustment was inappropriate and the
district court subtracted the four points, resulting in a total
offense level of 38.



                                             12
circumstances.       The court, did, however, analyze the § 3553(a)

factors--including            Reese’s    military       service,       family    history,

education, health, and service to community--before determining

that a 240-month sentence was sufficient and no greater than

necessary to accomplish the purpose of sentencing.                        Accordingly,

we find no procedural error in the district court’s sentencing

calculus.

            Reese next argues that his sentence was substantively

unreasonable        in        light     of   all       the   §     3553(a)       factors.

Specifically, Reese contends that the district court’s sentence

is too severe and far in excess of that imposed on others for

similar    offenses.           According     to    Reese,    physicians         previously

convicted of similar offenses have received drastically shorter

sentences–-in the range of seven to 78 months–-and that it is

“all but unheard of that a physician would be ordered to serve

20 years or more.”            Appellant’s Br. 39.

            First, we reject Reese’s argument that the cases he

cites     provide        a     meaningful     guidepost          for    assessing     the

substantive reasonableness of his sentence.                        As the government

notes, the sentences that Reese points to as comparable are in

fact easily distinguishable based on, among other things, the

offenses charged, the schedule of the drug at issue, the drug

quantity,      the           applicability        of    certain        departures      or

enhancements,        and         the     specific        offender        and      offense

                                             13
characteristics that may have motivated the district court to

vary from an advisory sentencing range.                Moreover, in enacting

the Sentencing Guidelines, “Congress sought proportionality in

sentencing through a system that imposes appropriately different

sentences for criminal conduct of differing severity.”                    U.S.S.G.

Ch. 1 Pt. A § 3.          We are satisfied with the district court’s

determination    that     Reese’s    sentence    was   proportional        to   the

severity of his charged conduct.               Finally, we are to presume

that   the   district’s    court’s    chosen    sentence      is   substantively

reasonable where, as here, it is within a correctly calculated

Guidelines    range.      Mendoza-Mendoza,      597    F.3d   at   217.      After

careful review, we find no cause to upset that presumption and

therefore affirm the district court’s sentence.



                                      II.

             For the foregoing reasons, we affirm the judgment of

the district court.

                                                                          AFFIRMED




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