            Case: 12-16580   Date Filed: 11/04/2013   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16580
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 4:07-cr-00286-WTM-GRS-1




UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

HUNG THIEN LY,

                                                          Defendant-Appellant.



                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                             (November 4, 2013)

Before TJOFLAT, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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      Hung Thien Ly appeals his convictions and total sentence of 97 months’

imprisonment for 129 counts of dispensing controlled substances outside the usual

course of professional practice and without legitimate medical purpose, in violation

of 21 U.S.C. § 841(a)(1). Ly raises five issues on appeal. He argues (1) the

district court erred by excluding evidence that Ly refused to treat patients for

violating his protocols; (2) the evidence was insufficient to support his convictions;

(3) a deliberate ignorance instruction was inappropriate; (4) the district court erred

at sentencing when it included the unindicted conduct and prescriptions as to three

patients in its calculation of the total drug quantity; and (5) his 97-month total

sentence was substantively unreasonable. We address each issue and affirm.

                              I. Exclusion of Evidence

      Ly first claims the district court erred by excluding evidence that he

discharged or refused to treat eight other patients who violated or who were

suspected of violating his protocols. He contends this evidence bore directly on his

state of mind and would have demonstrated his lack of criminal intent.

      We review the district court's evidentiary rulings for an abuse of discretion.

United States v. Brown, 665 F.3d 1239, 1247 (11th Cir. 2011). Federal Rule of

Evidence Rule 404(b) provides that evidence of other acts may be admissible to

prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” Fed. R. Evid. 404(b). Specific instances of


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conduct are inadmissible as character evidence, except in cases in which a person’s

character trait is an essential element of a charge, claim, or defense. Fed. R. Evid.

405(b). We have repeatedly held that evidence of good conduct is not admissible

to negate criminal intent, based on Rules 404(b) and 405(b). See United States v.

Ellisor, 522 F.3d 1255, 1270–71 (11th Cir. 2008).

The district court did not abuse its discretion in precluding Ly from introducing

evidence that he discharged other patients who allegedly violated his screening

protocols. This evidence is not probative of his intent with respect to the patients

who received the drugs covered by the indictment. See Ellisor, 522 F.3d at 1270–

71. Moreover, the addition of evidence regarding eight patients not in the

indictment would have posed a significant risk of confusion of the issues. Id. at

1270 n. 20. Even if the district court had erred in excluding the evidence, the error

did not prevent Ly from presenting an adequate defense because all of his

protocols were, in fact, described for the jury through the trial testimony. See

United States v. Ethridge, 948 F.2d 1215, 1218 (11th Cir. 1991) (noting that we

will reverse the district court’s exclusion of evidence that prevents the defendant

from presenting an adequate defense).

                           II. Sufficiency of the Evidence

      Ly next claims the evidence was insufficient to support his convictions. We

review de novo whether the evidence is sufficient to support a conviction, viewing


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the evidence in the light most favorable to the prosecution and drawing all

reasonable inferences and credibility choices in favor of the jury verdict. United

States v. Joseph, 709 F.3d 1082, 1093 (11th Cir. 2013), petition for cert. filed,

(U.S. July 10, 2013) (No. 13-5319). We will not reverse based on sufficiency of

the evidence unless no reasonable trier of fact could have found guilt beyond a

reasonable doubt. United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010).

      To convict a licensed physician under § 841(a)(1), the Government must

prove that the physician dispensed controlled substances outside of the usual

course of professional practice and not for a legitimate medical purpose, and that

he did so knowingly and intentionally. Joseph, 709 F.3d at 1094. Some factors

that we have recognized as indicative of a doctor's illegitimate dispensation of

drugs include, inter alia, (1) inordinately large quantities of controlled substances

are prescribed; (2) large numbers of prescriptions are issued; and (3) only cursory

or no physical examinations are given. See Joseph, 709 F.3d at 1104.

      There was sufficient evidence to support Ly’s convictions based on actual

knowledge or deliberate ignorance. Ly dispensed such large quantities of

controlled substances in the form of prescription Xanax, Lorcet, and Soma, that

many pharmacies stopped filling his prescriptions. Despite the high doses he

prescribed, he rarely examined his patients. He saw so many patients each day,

there were lines outside his office. See id. Nearly all of Ly’s patients were drug


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addicts or dealers, and he required cash-only payments and often dispensed the

drugs early. Further, he ignored warnings from concerned pharmacists and from

patients’ family members that many of his patients were abusing their

prescriptions. See id. It was reasonable for the jury to infer that Ly knowingly and

unlawfully dispensed controlled substances. Farley, 607 F.3d at 1333.

                       III. Deliberate Ignorance Instruction

      Ly next argues that a deliberate ignorance instruction was inappropriate

because there was no evidence that he deliberately avoided learning facts that

would indicate his patients’ drug diversion or abuse. He claims his protocols were

specifically designed to detect and prevent such abuse.

      We review a challenge to a jury instruction de novo. United States v. Stone,

9 F.3d 934, 937 (11th Cir. 1993). An instruction on deliberate ignorance is

appropriate only if the evidence shows that the defendant had suspicions as to facts

at issue but the defendant deliberately avoided making further inquiries because he

wished to remain ignorant to have a defense in the event of a subsequent

prosecution. United States v. Puche, 350 F.3d 1137, 1149 (11th Cir. 2003).

      The district court did not err in including the deliberate ignorance instruction

in the jury charge. First, Ly avoided learning whether or not his patients’ claimed

ailments were legitimate or warranted long-term medication treatment. His regular

patient visits lasted only 10–14 minutes each, during which time he performed no


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physical exam. Second, Ly was willfully blind to facts showing his patients’ abuse

or diversion of the pills he prescribed them. After Ly was directly informed by

patients’ family members and pharmacists that some of his patients were severely

addicted to the pills they received from him, Ly continued to prescribe them. The

evidence supported a deliberate ignorance theory.

                                 IV. Drug Quantity

      Ly argues the district court erred at sentencing by including drugs he

prescribed to three patients not covered by the indictment. Without these

prescriptions, Ly claims the total drug weight would have corresponded to a base

level of 24 instead of 26.

      We review a district court's factual determination of the quantity of drugs

used to establish a base offense level for clear error. United States v. Simpson, 228

F.3d 1294, 1298 (11th Cir. 2000). A court’s application of the Sentencing

Guidelines is reviewed de novo. United States v. Norris, 452 F.3d 1275, 1280

(11th Cir. 2006). When a defendant objects to a factual finding that is used in

calculating his guideline sentence, the Government bears the burden of establishing

the disputed fact by a preponderance of the evidence. United States v. Rodriguez,

398 F.3d 1291, 1296 (11th Cir. 2005).

      The Guidelines Manual provides that types and quantities of drugs not

specified in the count of the conviction are to be included, as relevant conduct, in


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determining the offense level if they were part of the same course of conduct or

part of a common scheme or plan as the count of conviction. U.S.S.G.

§ 1B1.3(a)(2), cmt. n. 9 (Nov. 2011). We broadly interpret the provisions of the

relevant conduct guideline. United States v. Behr, 93 F.3d 764, 765 (11th Cir.

1996).

      The district court did not clearly err in finding that Ly’s treatment of three

patients not covered by the indictment constituted relevant conduct. The three

patients’ grand jury testimony mirrored the trial testimony of the patients covered

by the indictment. Thus, the court did not err in finding both groups’ treatments

were part of a common scheme, or ongoing series, or by including the drugs in

calculating Ly’s base offense level.

                          V. Substantive Reasonableness

      Finally, Ly argues his 97-month sentence was substantively unreasonable

because the court should have granted his request for a downward variance based

on policy considerations. Specifically, he claims the court failed to account for the

disparity produced by the marijuana-conversion ratio, which punishes the unlawful

prescription of Adderall as harshly as more dangerous forms of amphetamine and

methamphetamine.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard. Gall v. United States, 128 S. Ct. 586, 591 (2007). The party


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who challenges the sentence bears the burden of establishing the sentence is

unreasonable in the light of both the record and the factors in section 3553(a).

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Although a court may

vary from the guideline range based on policy considerations, such as a

disagreement with the reasoning of the Guidelines, the court is not required to do

so. See United States v. Stratton, 519 F.3d 1305, 1307 (11th Cir. 2008) (discussing

Kimbrough v. United States, 128 S. Ct. 558 (2007)).

       Ly fails to demonstrate that his sentence is substantively unreasonable.

Although he argues that a sentencing court may grant a downward variance based

on a disagreement with the reasoning of the Guidelines, he does not cite any

authority holding that a court is required to do so. Cf. Stratton, 519 F.3d at 1307.

Further, his 97-month total sentence is within the applicable 78–97 month

guideline range, and below the twenty-year statutory maximum penalty. The court

stated that it had considered the facts of the case and each of the § 3553(a) factors,

and found no reason to depart from the guidelines. Thus, the court did not abuse

its discretion.

       AFFIRMED.




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