           Case: 14-13258   Date Filed: 04/27/2017     Page: 1 of 22


                                                            [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13258
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:13-cr-00004-LGW-JEG-1



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

versus

CLEVELAND J. ENMON,
M.D.,

                                                 Defendant - Appellant.

                       ________________________

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

                              (April 27, 2017)

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
              Case: 14-13258    Date Filed: 04/27/2017    Page: 2 of 22


      Dr. Cleveland Enmon was charged with 92 federal crimes arising from his

nine-month participation in two Georgia pain management clinics that purportedly

operated as “pill mills.”    Dr. Enmon appeals his convictions and 240-month

sentence for conspiracy to unlawfully dispense controlled substances in violation

of 21 U.S.C. §§ 841(b)(1)(C) and 846, unlawful dispensation of controlled

substances in violation of §§ 841(a)(1), (b)(1)(C), (b)(1)(E), and (b)(2), and money

laundering in violation of 18 U.S.C. §§ 1957(a) and (b)(1).

      Dr. Enmon raises four arguments on appeal. First, he asserts that the district

court plainly erred (a) by instructing the jury that his good faith belief that he was

acting in the usual course of professional practice was irrelevant and (b) by giving

the jury a general verdict form. Second, he challenges the district court’s decision

to allow him to represent himself at trial and at sentencing. Third, he claims that

the government presented insufficient evidence regarding the standard of medical

care in Georgia. Finally, he argues that his 240-month sentence was substantively

unreasonable. After careful review of the record and the parties’ briefs, we affirm.

                                          I

      Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal.

      In May of 2011, Dr. Enmon was hired to work for a pain management clinic

called Brunswick Wellness operated by his then-supervisor, Ronald Colandrea.


                                          2
              Case: 14-13258      Date Filed: 04/27/2017     Page: 3 of 22


Brunswick Wellness was a cash-only facility with little to no medical equipment,

and employed doctors who were primarily responsible for issuing prescriptions.

During Dr. Enmon’s short employment at Brunswick Wellness, the clinic was the

subject of an ongoing investigation following a local pharmacist’s complaints

about the clinic’s practices.1

        Undeterred by the Drug Enforcement Agency’s raid of Brunswick Wellness

in July of 2011, Dr. Enmon opened a new clinic called Ocean Care in another part

of Georgia just weeks later. Dr. Enmon was the only doctor at Ocean Care and he

personally issued handwritten prescriptions, charging customers $275 per visit.

Local pharmacists subsequently reported that Ocean Care was issuing an

inordinate amount of prescriptions and surrounding businesses complained about

large lines and loitering outside the clinic. In October of 2011, the DEA raided

Ocean Care and seized certain files and money orders. But Dr. Enmon remained

open for business through December of 2011.

        Dr. Enmon was then arrested and charged with 92 federal counts of

unlawfully dispensing controlled substances, conspiracy, and money laundering

stemming from his employment at Brunswick Wellness and his operation of Ocean

Care.    Concerned with his erratic behavior at a preliminary bond hearing, a


1
  Customer records from Brunswick Wellness revealed that, in a 51-day period, Dr. Enmon saw
1,098 patients on 2,166 visits and wrote approximately 7,883 prescriptions for over 600,000
medications including Roxicodone (a brand of the generic drug oxycodone) and Xanax.
                                            3
                  Case: 14-13258       Date Filed: 04/27/2017   Page: 4 of 22


magistrate judge ordered a mental evaluation of Dr. Enmon to determine whether

he was competent to stand trial.                  A forensic psychologist concluded that

Dr. Enmon was competent to stand trial despite his “grandiose sense of

self-importance” and that his uncooperative behavior was not based on delusion or

mental illness, but rather an attempt to avoid the legal process.

         After the mental evaluation, Dr. Enmon expressed his desire to waive

counsel and proceed pro se. During a preliminary Faretta2 hearing before a

magistrate judge, Dr. Enmon’s attorney led the questioning about his age,

education, and familiarity with the legal process, and the judge warned Dr. Enmon

about the dangers of self-representation. Following the hearing, the magistrate

judge granted Dr. Enmon’s request, and Dr. Enmon signed a written waiver

acknowledging that he “knowingly, intelligently, and voluntarily” elected to waive

counsel, and that standby counsel had been appointed.

         At a pretrial hearing before the district court two months later, Dr. Enmon

was similarly asked about his intention to waive counsel and reminded of the

intricacies and dangers of self-representation in a federal criminal trial.         The

district court conducted a second Faretta hearing to ensure that Dr. Enmon’s

decision was knowing and voluntary. In pertinent part, the district court expressed


2
    Faretta v. California, 422 U.S. 806 (1975).


                                                  4
             Case: 14-13258     Date Filed: 04/27/2017   Page: 5 of 22


its concern as to whether Dr. Enmon understood the risks of self-representation by

giving the following warning:

      Although the Magistrate Judge has covered this with you, I feel that it
      is my obligation to cover it with you as well, and that is to make sure
      you know that a trial of a federal criminal case here in this court is a
      complex matter in which training and experience come to bear, in
      particular, the training and experience that a trained and experienced
      trial attorney would have. Although you have the right to proceed pro
      se, it is, nevertheless, my obligation to hold you to the Rules of
      Criminal Procedure and the Rules of Evidence as they apply in federal
      court. I must tell you that even extremely intelligent people, like
      yourself, find themselves hamstrung, to some extent, if they are not
      extremely familiar with the Rules . . . because even if you do not
      know them, I still must apply them. In fact, as a pro se litigant, you
      are entitled to no greater leeway or no special treatment.

Tr. of Pretrial Conference, D.E. 123, at 7–8.

      The district court asked Dr. Enmon if he understood and he replied that he

did. See id. The district court went on to describe court and trial procedures in

detail, including that Dr. Enmon could lose his opportunity to proceed pro se for

disrupting the trial or disregarding the rules of the court. After indicating that

standby counsel would be available at all times, the district court went over jury

selection and the procedure for opening statements, witness presentation,

Dr. Enmon’s right to testify, and final arguments.

      In response, Dr. Enmon maintained that he was highly educated, intelligent,

and had experience representing himself in a previous criminal matter and in an

administrative hearing with the DEA. Moreover, Dr. Enmon stated for a second


                                          5
             Case: 14-13258     Date Filed: 04/27/2017   Page: 6 of 22


time that he understood the severity of the charges against him and the possible

penalties. The district court then granted Dr. Enmon’s request to waive counsel.

      At trial, 28 witnesses testified about Brunswick Wellness, Ocean Care, and

Dr. Enmon’s medical practices at both clinics. The previous owner of Brunswick

Wellness, Mr. Colandrea, and the clinic’s former manager testified for the

government and admitted that they intended to run a “pill mill” from the start.

Other lay witnesses included the clinic’s former employees, Dr. Enmon’s patients,

doctors who also treated Dr. Enmon’s patients, and investigating agents. These

witnesses discussed the nature of the clinics and indicated that most (if not all) of

the prescriptions Dr. Enmon issued followed inadequate medical examinations.

      The district court instructed the jury as to the elements of the crimes charged

against Dr. Enmon. In relevant part, the court instructed the jury that Dr. Enmon’s

good faith belief was irrelevant to the mens rea element for the unlawful

dispensation of controlled substances charge because the jury had to determine

from an objective standpoint whether Dr. Enmon issued prescriptions in the usual

course of professional practice.      The jury later returned a verdict finding

Dr. Enmon guilty on all 92 counts.

      After trial, Dr. Enmon requested that counsel be reappointed for sentencing.

But Dr. Enmon disagreed with a sentencing memorandum prepared by his attorney

(and its reference to the mental evaluation and report) and asked that the


                                         6
              Case: 14-13258    Date Filed: 04/27/2017    Page: 7 of 22


memorandum be withdrawn and that counsel be excused.              Following a third

Faretta colloquy, the district court granted Dr. Enmon’s request to proceed pro se.

The district court then varied below the government’s requested sentence and the

advisory guidelines, and it imposed a 240-month sentence.           Dr. Enmon now

appeals.

                                         II

      Dr. Enmon concedes that our review of his challenges to the jury

instructions and the general verdict form is for plain error because he failed to

object in the district court. See United States v. Moriarty, 429 F.3d 1012, 1018–19

(11th Cir. 2005). We have described plain error review as a “daunting obstacle,”

see United States v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998), because a

defendant must show that “there is (1) error, (2) that is plain, and (3) that affects

substantial rights.” Moriarty, 429 F.3d at 1019. “[I]f all three requirements are

met, it is still within [our] discretion whether to correct the forfeited error.”

Pielago, 135 F.3d at 708.      The burden of establishing that an error affected

substantial rights “is anything but easy[,]” and it ultimately requires a defendant to

show that the error affected the outcome of the proceedings below. See United

States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005).

      The Controlled Substances Act prohibits a physician from “knowingly or

intentionally” dispensing controlled substances, see 21 U.S.C. § 841(a)(1), but


                                          7
                Case: 14-13258   Date Filed: 04/27/2017    Page: 8 of 22


allows registered practitioners to dispense certain controlled substances with a

valid prescription. See § 829(a)-(b). A prescription for a controlled substance is

unlawful if a medical practitioner issues it without a legitimate medical purpose or

outside of the “usual course of his professional practice.”            See 21 C.F.R.

§ 1306.04(a).     We have held that a jury must determine from an objective

standpoint whether a prescription was issued in the usual course of professional

practice—that is, we look to whether the doctor’s practice was “in accordance with

a generally-accepted standard of medical practice.” See United States v. Merrill,

513 F.3d 1293, 1306 (11th Cir. 2008).

      Dr. Enmon acknowledges that the district court correctly described the

elements of an offense under § 841(a)(1), but claims it committed plain error by

instructing the jury that his good faith belief was irrelevant to its determination of

whether he had issued prescriptions in the “usual course of his professional

practice.” In pertinent part, the district court gave the following instruction:

      Whether the Defendant acted outside the usual course of professional
      practice is to be judged objectively by reference to standards of
      medical practice generally recognized and accepted in the United
      States. Therefore, whether the Defendant had a good faith belief that
      he dispensed a controlled substance in the usual course of his
      professional practice is irrelevant.

      However, whether the Defendant acted without a legitimate medical
      purpose depends on the Defendant’s subjective belief about whether
      he was dispensing the controlled substance for a legitimate medical
      purpose. Therefore, in order for the Government to establish that the
      Defendant was acting without [a] legitimate medical purpose, the
                                           8
                Case: 14-13258    Date Filed: 04/27/2017    Page: 9 of 22


      Government must prove beyond a reasonable doubt that the
      Defendant did not subjectively believe that he was dispensing the
      controlled substance for a legitimate medical purpose.

Tr. of Trial Proceedings, D.E. 127, at 168 (emphasis added).

      In support of his argument, Dr. Enmon primarily relies on our decision in

United States v. Tobin, 676 F.3d 1264 (11th Cir. 2012). Dr. Enmon is correct that

we observed in Tobin “that our precedent has not always been clear in specifying

the standpoint from which a jury is to determine whether a prescription was ‘issued

. . . by an individual practitioner acting in the usual course of his professional

practice.’”     Id. at 1282 (citation omitted).      We described the confusion by

reviewing two prior cases where we held that a doctor’s behavior “must be judged

by an ‘objective standard[,]’ . . . [y]et . . . approved a charge that instructed the jury

to consider whether the defendant had a ‘good faith’ belief that he was prescribing

medicine” in line with that objective standard. See id. Even in light of that

discrepancy, we held that our precedents, when “read . . . to form a coherent

whole[,] . . . stand for the proposition that a jury must determine from an objective

standpoint whether a prescription is made in the ‘usual course of professional

practice.’” See id. at 1282–83 (citations omitted).

      Dr. Enmon misinterprets our analysis in Tobin, however, to mean that his

good faith belief was relevant under the objective standard the jury was required to

employ.       The problem is that Dr. Enmon misses our ultimate conclusion in


                                            9
              Case: 14-13258       Date Filed: 04/27/2017     Page: 10 of 22


Tobin—in that case, we affirmed the district court’s rejection of the defendants’

proposed jury instructions with regard to their “subjective beliefs that they were

acting in the usual course of professional practice . . . because [the instructions] did

not provide ‘a correct statement of the law.’” Id. at 1283.

       To the extent Dr. Enmon’s subjective belief was relevant to the jury’s

decision, the district court correctly (and favorably) explained that whether Dr.

Enmon dispensed controlled substances “for a legitimate medical purpose” could

be viewed from a subjective standpoint. Dr. Enmon’s argument that we have never

(unequivocally) held that good faith is irrelevant to the objective standard required

for the “usual course of his professional practice” analysis, without more, does not

support a finding of plain error here.3

       In addition, Dr. Enmon argues that the jury’s general verdict form violated

his due process rights under the Fifth Amendment because the district court was

required to give the jury a special verdict form for each of the substantive counts.

Dr. Enmon admits that he consented to the general verdict form, but argues that by

listing the requirements for the mens rea element separately, the district court

prevented the jury from reaching a unanimous verdict.

       Specifically, Dr. Enmon claims that the district court erred by informing the

jury that it could find he acted “knowingly and intentionally” by either issuing

3
 In any event, Dr. Enmon does not attempt to explain how the court’s jury instruction impacted
his substantial rights or the course of the proceedings below. See Moriarty, 429 F.3d at 1019.
                                             10
             Case: 14-13258     Date Filed: 04/27/2017    Page: 11 of 22


prescriptions outside the usual course of professional practice or not for a

legitimate purpose. The sole case upon which Dr. Enmon relies, Schad v. Arizona,

501 U.S. 624 (1991), does not support his argument. In Schad, the Supreme Court

considered a general verdict instruction related to a state’s first-degree murder

statute that listed three alternative ways to commit the crime. See id. at 629–30.

Writing for a plurality of the Court, Justice Souter recognized that “legislatures

frequently enumerate alternative means of committing a crime without intending to

define separate elements or separate crimes[,]” see id. at 636, and rejected the

petitioner’s due process challenge to his conviction under instructions that did not

require the jury to agree on one of the alternative means. See id. at 643–45.

      Here, the district court correctly instructed the jury that it could find

Dr. Enmon guilty only if all of the elements were proven beyond a reasonable

doubt. See United States v. Griffin, 705 F.2d 434, 437 (11th Cir. 1983) (noting that

a special verdict form is often “disfavored” in criminal trials and is unnecessary

where a court instructs a jury that they “would have to agree on all essential

elements of the offense” charged). Dr. Enmon has therefore not established that

the jury instruction or the special verdict form affected his substantial rights or the

outcome of the proceedings below.

                                         III




                                          11
             Case: 14-13258      Date Filed: 04/27/2017    Page: 12 of 22


      A district court’s conclusion that a defendant has validly waived his right to

counsel is a mixed question of law and fact that we review de novo. See United

States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995). When a defendant asserts his

or her constitutional right to self-representation, “[t]he ultimate test is not the trial

court’s express advice, but rather the defendant’s understanding” of the risks of

self-representation. Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.

1986). We have described several factors that impact a defendant’s knowing and

voluntary waiver of counsel including, but not limited to, a defendant’s age, health,

and education, a defendant’s contact with an attorney prior to trial, a defendant’s

“knowledge of the nature of the charges and the possible penalty he [i]s subject to

if convicted,” a defendant’s familiarity with courtroom procedure, and whether

standby counsel is appointed and available to assist during the defendant’s trial.

See id. at 1065–66.

      Dr. Enmon first argues that his standby counsel’s leading questions about his

age, education, professional experience, knowledge of the criminal charges, and

lack of formal legal training during the initial Faretta hearing prevented the

magistrate judge from having a meaningful discussion about the pitfalls of

self-representation. Although it may have been better for the judge to conduct the

initial questioning, the inquiry turns on whether those factors establish that a

defendant understands the risks of self-representation. See Fitzpatrick, 800 F.2d at


                                           12
             Case: 14-13258     Date Filed: 04/27/2017   Page: 13 of 22


1065. Moreover, the judge took time after the attorney’s questions to expressly

advise Dr. Enmon that it is unwise to waive counsel and that a trained lawyer could

better represent him, “just as it would be unwise for any person trained in law to

try to practice medicine upon themselves.” Tr. of Faretta Hearing, D.E. 45, at 16.

The judge then warned Dr. Enmon that he was not familiar with court procedures

or the rules of evidence and asked him again if he still wanted to proceed pro se.

Dr. Enmon said that he did, and the judge indicated that standby counsel would be

available. Dr. Enmon confirmed that he had made his decision freely and without

improper influence, and he signed a written waiver.

      Two months later, Dr. Enmon appeared for a pretrial hearing before the

district court. Although the district court referred to the initial hearing before the

magistrate judge, it stated its intention to conduct a second Faretta hearing. Like

the magistrate judge, the district court gave Dr. Enmon a detailed, express warning

about the dangers of self-representation in a complex federal criminal trial. The

district court also considered Dr. Enmon’s education and experience, confirmed

that Dr. Enmon understood the charges and possible penalties, described the trial

process in detail, clarified that standby counsel is not “co-counsel,” and asked

standby counsel to guide Dr. Enmon on direct examination and cross-examination

of witnesses. Tr. of Pretrial Conference, D.E. 123, at 5–10, 12–14, 37.




                                         13
             Case: 14-13258     Date Filed: 04/27/2017   Page: 14 of 22


      Although Dr. Enmon agrees that an adequate waiver “depends on the

particular facts and circumstances of each case,” see Br. of Appellant at 64, his

primary argument is that the colloquy in the district court closely resembled the

inadequate Faretta hearing in Cash, 47 F.3d at 1088. But the Faretta colloquies in

this case are distinguishable in important ways. First, in Cash, the district court

granted the defendant’s request to proceed pro se “on the very day of the trial.” Id.

(emphasis in original). Second, the court in Cash failed to consider defendant’s

knowledge of the charges and potential penalties he faced or his familiarity with

courtroom procedure and evidentiary rules. See id. Lastly, and significantly, the

district court “generally discouraged self-representation and made some inquiry

into [the defendant’s] reasons for wishing to represent himself” instead of

conducting a searching inquiry to confirm that the waiver was made knowingly

and intelligently. Id. Unlike the district court in Cash, both the magistrate judge

and district court here—in two separate hearings that occurred before trial—

conducted a thorough inquiry to ensure that Dr. Enmon understood the risks of the

self-representation.

      As to the sentencing hearing, Dr. Enmon claims that the district court

granted his request to proceed pro se after only a brief exchange. See Br. of

Appellant at 15. But this claim is refuted by the record. The district court

expressly stated that “[a]lthough, conceivably, [it] could travel on the prior Faretta


                                         14
             Case: 14-13258     Date Filed: 04/27/2017    Page: 15 of 22


hearing,” the court decided it would instead “reinstitute certain questions and make

sure that, again, at this juncture . . . [Dr. Enmon’s] decision [wa]s made knowingly,

intelligently, and voluntarily.” Tr. of Sentencing Hearing, D.E. 128, at 7. In the

same way it had done before trial, the district court explained that Dr. Enmon

would be treated as an attorney, held to the rules of procedure, and that Dr. Enmon

faced “very stiff penalties” at the sentencing proceeding. Id. at 8–9. The district

court then asked whether Dr. Enmon had reviewed the presentence investigation

report and discussed it with his attorney and whether Dr. Enmon understood that

the PSI had recommended a sentence of 360 months’ imprisonment, while the

advisory guidelines recommended up to 16,260 months’ imprisonment. See id. at

9. The district court then confirmed that Dr. Enmon was well-educated and that he

had represented himself during trial and on previous occasions. Finally, the district

court warned Dr. Enmon again that a trained lawyer could better represent him and

asked Dr. Enmon if he understood the disadvantages of choosing to represent

himself. Dr. Enmon responded, for a third time, that he understood and that he

wanted to exercise his constitutional right to self-representation. See id. at 10.

      In three separate Faretta hearings, Dr. Enmon was warned of the dangers of

self-representation and reminded of the seriousness of the charges against him and

the penalties he faced, and he swore under oath each time that he understood the

risks and that his waiver was knowing and voluntary. The district court therefore


                                          15
               Case: 14-13258       Date Filed: 04/27/2017       Page: 16 of 22


did not err by observing Dr. Enmon’s constitutional right to self-representation and

by granting his request to waive counsel during trial and at sentencing.

                                               IV

       We generally review de novo whether the evidence was sufficient to sustain

a conviction. See United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004).

But where, as here, a defendant fails to move for a judgment of acquittal or renew

such motion at the close of the evidence, that error “operates as a waiver . . . and

forecloses any review of the sufficiency of the evidence except where a

miscarriage of justice would result.” United States v. Tapia, 761 F.2d 1488, 1492

(11th Cir. 1985) (internal citation and quotation marks omitted).                     We have

interpreted this standard to require “a finding that ‘the evidence on a key element

of the offense is so tenuous that a conviction would be shocking.’”4 Id.

       In analyzing the sufficiency of the evidence, we view the evidence in the

light most favorable to the government and accept all reasonable inferences in

favor of the jury’s verdict. See United States v. Hernandez, 433 F.3d 1328, 1335

(11th Cir. 2005).       “[A] jury may find that a doctor violated the [Controlled

Substances] Act from evidence received from lay witnesses surrounding the facts


4
  After the government rested its case, the district court expressly asked Dr. Enmon if he wanted
to move for a judgment of acquittal, but he declined to do so. Tr. of Trial Proceedings, D.E. 127,
at 20. Following the jury’s verdict, Dr. Enmon’s standby counsel filed a one-page motion for a
new trial, and the court ordered Dr. Enmon to file briefing to support the motion. Dr. Enmon
chose not to and instead filed a pro se motion to vacate his conviction claiming the magistrate
judge had improperly issued warrants against him.
                                               16
             Case: 14-13258    Date Filed: 04/27/2017   Page: 17 of 22


and circumstances of the prescriptions.” United States v. Joseph, 709 F.3d 1082,

1100 (11th Cir. 2013) (internal citation and quotation marks omitted). Moreover, a

“jury has exclusive province over [weighing the credibility of witnesses] and [we]

may not revisit this question.” United States v. Chastain, 198 F.3d 1338, 1351

(11th Cir. 1999).

      To support his insufficiency claim, Dr. Enmon’s only argument is that the

government failed to present evidence regarding the applicable medical standards

in Georgia, and that the error precluded the jury from finding that he did not

prescribe medication for “a legitimate medical purpose” because the jury had no

reliable benchmark by which to judge the allegations against him. See Br. of

Appellant at 71. But the state’s standard of medical care is not a necessary element

of the federal offense, and Dr. Enmon has not pointed to evidence “on a key

element of the offense” that is “so tenuous” as to establish manifest injustice.

Tapia, 761 F.2d at 1488. See also Joseph, 709 F.3d at 1096 (rejecting, on plain

error review, an objection to a jury instruction that measured conduct of a

physician objectively based on generally accepted standards in the United States).

      Irrespective of Georgia’s medical standards, the jury was presented with

sufficient evidence to infer that Dr. Enmon acted outside the scope of professional

practice and without a legitimate medical purpose in issuing prescriptions. Several

lay witnesses described the events that led to Dr. Enmon’s arrest and stated that


                                        17
             Case: 14-13258    Date Filed: 04/27/2017   Page: 18 of 22


Dr. Enmon prescribed large amounts of medications after conducting cursory

examinations of patients. Other witnesses testified that Dr. Enmon knew or should

have known that his patients were abusing prescription drugs and that long lines

formed outside the clinics each day.         The government also elicited expert

testimony from two witnesses who reported that Dr. Enmon’s methods were not

within the usual course of professional practice and that the overwhelming

majority of Dr. Enmon’s prescriptions were not medically indicated. Significantly,

Dr. Enmon’s former supervisor at Brunswick Wellness, Mr. Colandrea, and the

clinic’s former manager testified that they intended to run Brunswick Wellness as a

“pill mill.” Moreover, several of Dr. Enmon’s former patients corroborated the

testimony of other witnesses by admitting that they sought medications they did

not need.

      In sum, at least 28 witnesses testified about specific facts establishing that

Dr. Enmon’s practice of prescribing medications was not legitimate or not based

on comprehensive medical examinations of patients. And finally, Dr. Enmon

testified on his own behalf and claimed that he did not act outside of the usual

course of professional practice. It was the province of the jury to discredit that

testimony and credit the testimony of the other witnesses. See Joseph, 709 F.3d at

1100. Dr. Enmon therefore has not met the “miscarriage of justice” standard here.

                                        V


                                        18
             Case: 14-13258     Date Filed: 04/27/2017   Page: 19 of 22


      Dr. Enmon’s final argument is that his 240-month sentence is substantively

unreasonable. We review the reasonableness of a sentence under a deferential

abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 41 (2007).

The party challenging the sentence bears the burden of showing that it is

substantively unreasonable in light of the record and the § 3553(a) factors. See

United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We will vacate a

sentence only if “we are left with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)

(en banc) (internal quotation marks and citation omitted).

      A district court “shall impose a sentence sufficient, but not greater than

necessary to comply with the purposes” listed in § 3553(a), including the need “to

afford adequate deterrence to criminal conduct, to protect the public from further

crimes of the defendant [and] to provide the defendant with needed . . . correctional

treatment in the most effective manner.”          18 U.S.C. § 3553(a)(2)(B)-(D).

Additional factors include “the nature and circumstances of the offense and the

history and characteristics of the defendant . . . [and] the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct.” Id. at §§ 3553(a)(1), (6). There is no unwarranted


                                         19
             Case: 14-13258      Date Filed: 04/27/2017    Page: 20 of 22


disparity, however, “when a cooperating defendant pleads guilty and receives a

lesser sentence than a defendant who proceeds to trial.” United States v. Langston,

590 F.3d 1226, 1237 (11th Cir. 2009).            A court must consider significant

distinctions and it “should not draw comparisons to cases involving defendants

who were convicted of less serious offenses.” See United States v. Jayyousi, 657

F.3d 1085, 1118 (11th Cir. 2011).

      Dr. Enmon’s primary argument is that the drug guideline was drafted “with a

view towards illicit drug dealers and not doctors who have been convicted of

prescribing [medications] outside the usual course of professional practice.” Br. of

Appellant at 75. In Dr. Enmon’s view, doctors do not need deterrence in the same

way as “hardened drug dealers from the streets.” Id.

      Dr. Enmon’s sentence of 240 months’ imprisonment, however, is well below

the advisory guidelines’ recommendation of 16,260 months based on the large

amount of controlled substances that Dr. Enmon prescribed, and that variance is an

indicator of reasonableness. See, e.g., United States v. Hunt, 526 F.3d 739, 746

(11th Cir. 2008) (highlighting that we expect a sentence within the advisory

guideline range to be reasonable).5 Moreover, the district court stated that the

advisory guideline range was “astounding” and “obviously far too much.” Tr. of


5
 At sentencing, the government alluded to the evidence presented at trial indicating that
Dr. Enmon wrote up to “155 prescriptions and [saw] 42 patients a day.” Tr. of Sentencing
Hearing, D.E. 128 at 39.
                                           20
             Case: 14-13258     Date Filed: 04/27/2017   Page: 21 of 22


Sentencing Hearing, D.E. 128 at 50. The district court was not unsympathetic to

Dr. Enmon’s legitimate concern about his inability to practice medicine; instead, it

balanced Dr. Enmon’s history and characteristics with the specific facts and

circumstances of his offense. The district court also referenced its need to “find a

punishment that is sufficient, but not greater than necessary, to accomplish the

purposes of the punishment.” Id. And finally, the district court noted that although

a forensic report indicated Dr. Enmon had “anti-social [and] narcicisstic

personality characteristics,” it was not going to hold those findings against

Dr. Enmon or allow the report to impact its sentencing decision. See id. at 51.

      Dr. Enmon also argues that the district court abused its discretion by

ignoring his sentencing disparity claim under § 3553(a)(6). But Dr. Enmon has not

met his burden of presenting a suitable, comparable case. The only comparable

defendant that Dr. Enmon offers is a co-conspirator, Mr. Colandrea.               But

Mr. Colandrea’s situation is distinguishable because he pled guilty to conspiracy,

accepted responsibility for the crime, and substantially assisted in the investigation

and prosecution of others related to the “pill mill” operation. See Langston, 590

F.3d at 1237. See also United States v. Williams, 526 F.3d 1312, 1323 (11th Cir.

2008) (noting that a defendant’s situation is not comparable to a co-conspirator

who pleads guilty and assists the government). In exchange, the government

moved for a downward departure and the district court was within its discretion to


                                         21
             Case: 14-13258      Date Filed: 04/27/2017   Page: 22 of 22


reduce Mr. Colandrea’s sentence. Without a comparable defendant—one with a

similar record, who has been found guilty of similar criminal conduct—there

cannot be a proper comparison of sentences under § 3553(a)(6). See Langston, 590

F.3d at 1237. See also United States v. Martin, 455 F.3d 1227, 1241 (11th Cir.

2006) (refusing to compare sentences without “a valid comparator”).

      Because Dr. Enmon has not demonstrated that his sentence was

substantively unreasonable in light of the record and the § 3553(a) factors, we

affirm his 240-month sentence.

                                          VI

      Dr. Enmon has not established that the district court plainly erred in

instructing the jury or providing the jury with a general verdict form, that the

district court erred in allowing him to proceed pro se, that the jury’s verdict was

manifestly unjust in light of the evidence presented, or that the district court

imposed a substantively unreasonable sentence. We therefore affirm Dr. Enmon’s

convictions and sentence.

      AFFIRMED.




                                          22
