                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4243



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


LONNIE KEITH SIPSY,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin, Chief
District Judge. (2:07-cr-00189-JRG-1)


Submitted:   July 14, 2008                 Decided:   July 29, 2008


Before MICHAEL and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Wilmer Parker, III, Agne Krutules, MALOY JENKINS PARKER, Atlanta,
Georgia, for Appellant. Charles T. Miller, United States Attorney,
Monica K. Schwartz, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Lonnie Keith Sipsy, a medical doctor, pled guilty to

knowingly and intentionally obtaining hydrocodone, a Schedule III

controlled substance, by deception and subterfuge, in violation of

21 U.S.C. § 843(a)(3) (2000).    During his Rule 11 hearing, Sipsy

admitted that he issued prescriptions for hydrocodone in the names

of four different people with the understanding that some or all of

the pills would be returned to him for his own use and for the

purpose of feeding his addiction.       The district court sentenced

Sipsy to 12 months’ imprisonment in conformity with his advisory

guidelines range.   On appeal, Sipsy argues the district court

clearly erred in enhancing his advisory guidelines range four

levels pursuant to U.S. Sentencing Guidelines Manual (“U.S.S.G.”)

§ 3B1.1 for being an organizer or leader of criminal activity that

involved five or more participants.     We affirm the judgment of the

district court.

          A district court is authorized to enhance a defendant’s

advisory guidelines range four levels if the defendant was an

organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive. U.S.S.G. § 3B1.1(a).

A district court need only find the facts supporting a § 3B1.1(a)

enhancement by a preponderance of the evidence.    See United States

v. Urrego-Linares, 879 F.2d 1234, 1238 (4th Cir. 1989). A district

court’s determination that a defendant was a leader or organizer


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of criminal activity is a factual issue that is reviewed for clear

error.   United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).

This deferential standard of review requires reversal only if this

court is “left with the definite and firm conviction that a mistake

has been committed.” United States v. Stevenson, 396 F.3d 538, 542

(4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564,

573 (1985)).

           We have reviewed the record and cannot conclude that the

district   court   clearly   erred   in   enhancing   Sipsy’s   advisory

guidelines range four levels pursuant to § 3B1.1(a).        During his

Rule 11 hearing, Sipsy confessed to writing false prescriptions for

hydrocodone for Kerri Cyphers, Rick Combs, and Christy Workman, who

would then obtain the pills and bring them back to Sipsy.          Sipsy

would share some of the pills with his accomplices but wrote the

false prescriptions to feed his own addiction to hydrocodone.        As

the district court found, Sipsy and Dr. Jeffrey Bates exercised

decision making authority over the other three in that only Sipsy

and Bates had the power to write prescriptions. Moreover, as Sipsy

had the ability to prescribe the medication, he could control which

of his three accomplices to use, when the hydrocodone would be

prescribed, and in what quantity and strength.

           While Sipsy argues there is no evidence he recruited his

accomplices into his criminal activity, Sipsy’s argument defines

“recruit” too narrowly.      Also, Sipsy’s suggestion that he was


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recruited by Cyphers, Combs, Workman, or Dr. Bates is implausible

in light of his admissions in the district court that he was

addicted to hydrocodone and wrote false prescriptions to feed his

own addiction.    Finally, the cases relied on by Sipsy to support

his argument that § 3B1.1(a) was improperly applied in his case are

unavailing.

           Sipsy next argues the two-level enhancement he received

pursuant to § 3B1.3 resulted in double counting as his ability to

write prescriptions was already accounted for in his enhancement

pursuant to § 3B1.1.           Sipsy’s argument is based on the false

premise that the district court applied the § 3B1.3 enhancement

because of his “special skill” or ability to prescribe medication.

The record indicates that the district court applied the § 3B1.3

enhancement because of Sipsy’s abuse of a position of trust and not

because of his ability to prescribe medication.               Sipsy abused his

position   of   trust   when    he   continued   to   treat    patients   while

illegally acquiring and abusing hydrocodone and when insurance

providers were billed for the false prescriptions.

           Sipsy next argues that the district court clearly erred

in finding that he was “a common drug dealer.”                Sipsy appears to

argue that, because he was addicted to hydrocodone and because he

was not distributing drugs in exchange for money, the district

court should not have compared him to a “common drug dealer.”

During his Rule 11 hearing, Sipsy admitted to using his accomplices


                                     - 4 -
to distribute drugs to himself and then back to his accomplices.

That   he    received      drugs   instead   of   money   for   his   efforts   is

immaterial, and his third argument is without merit.                  We likewise

reject Sipsy’s argument that even assuming he was a common drug

dealer, such a finding does not warrant a four-level leadership

enhancement under § 3B1.1(a).           See Sayles, 296 F.3d at 225.

              Sipsy’s final argument is that the district court erred

in applying the § 3B1.1 enhancement because his accomplice, Dr.

Bates,      engaged   in    similar    conduct    but     did   not   receive   an

enhancement under § 3B1.1.            Sipsy’s argument is without merit.

Accordingly, we affirm the judgment of the district court.

              We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                                         AFFIRMED




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