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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 18-10804
                         Non-Argument Calendar
                       ________________________

    D.C. Docket No. 3:08-cr-00027-LC-EMT-1; 3:13-cr-00095-LAC-EMT-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ROBERT L. IGNASIAK, JR.,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (March 30, 2020)

Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:
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       Robert Ignasiak, Jr., proceeding pro se, challenges his convictions and 360-

month prison sentence for healthcare fraud, dispensing controlled substances, and

failure to appear for a jury trial.

                                              I.
       In 2008, a federal grand jury indicted Ignasiak on 54 counts related to the

execution of a scheme to defraud Medicaid and Blue Cross Blue Shield of Florida.

Several of these counts charged Ignasiak with unlawfully dispensing a variety of

controlled substances. At trial, the government’s theory of prosecution was that

Ignasiak had prescribed unnecessary or excessive quantities of controlled

substances without a legitimate medical purpose and “outside the usual course of

professional practice.” United States v. Ignasiak, 667 F.3d 1217, 1219 (11th Cir.

2012). Two of the counts further charged that “death resulted” from the use of

controlled substances prescribed to two patients, M.B. and B.E. Id.

       Dana Easterly, the widower of patient B.E., testified at trial that Ignasiak

began treating his wife within a few months after they moved to Florida from

Louisiana in 1999. Id. at 1223–24. B.E. had been in a tragic car accident in 1994,

in which her nine-year old daughter was killed and B.E. was ejected through the

windshield headfirst, causing serious injuries to her face. Id. at 1224. Before

seeing Ignasiak, B.E. had several reconstructive surgeries and had a history of

major depression, anxiety, seizures, peptic ulcers, and fainting spells. Id. B.E.’s


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husband and son both testified that the prescriptions Ignasiak wrote B.E. for

Lortab, Valium, Duragesic patches, and Xanax made her lethargic and

nonfunctional. Id. On the day B.E. died, she “seemed fine,” but when her husband

returned home from work she was slumped over on the sofa bed and paramedics

were not able to revive her. Id. B.E.’s autopsy determined that she died of

“multiple drug intoxication.” Id. The autopsy report did not reveal the levels of

controlled substances in her system at the time of her death. Id. However, hospital

records showed that the Xanax in B.E.’s system was in the therapeutic range but

she had other drugs in her system that were slightly higher than the therapeutic

range. Id. The autopsy was unable to rule out the possibility that B.E. died from a

stroke she suffered three weeks prior to her death. Id.

      The government also presented the testimony of another medical examiner,

who had conducted an autopsy of patient M.B. Id. at 1225. He testified that M.B.

was a “woman who looked like she had been having a downhill path from a

medical viewpoint, and was heading towards death.” Id. (alterations adopted).

Ultimately, M.B.’s autopsy determined that M.B. died of complications from

multiple drugs in her system, including toxic levels of diazepam and morphine. Id.

Leading up to M.B.’s death, Ignasiak had been prescribing her hydrocodone and

diazepam on a monthly basis. And during M.B.’s last office visit, at which she

sought treatment for a broken toe, Ignasiak prescribed 50 morphine pills for her.


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M.B. filled the morphine prescription on September 3, 2003, and died just days

later.

         After a nineteen-day trial, the jury found Ignasiak guilty of 43 of the 54

counts charged. He was sentenced to a total term of 292-months imprisonment.

Id. at 1219.

         On January 19, 2012, this Court reversed and vacated Ignasiak’s sentence

and remanded to the district court for further proceedings. Id. at 1231. On April

19, 2012, this Court granted Ignasiak’s motion for release from custody. The

district court scheduled a retrial for December 3, 2012, but sometime in November,

Ignasiak faked death by suicide, absconded from pretrial supervision, and fled the

state. After he was captured in September 2013, Ignasiak ultimately pled guilty to

several charges, but not to the two counts involving the deaths of B.E. and M.B.

He was sentenced to a total term of 360 months.

         Ignasiak did not appeal directly from that judgment, but instead filed a

petition for habeas corpus alleging, among other things, that his counsel was

ineffective for failing to file a direct appeal. The district court agreed and vacated

the earlier judgments. It then imposed the same sentences so that Ignasiak could

file an out-of-time appeal.

         In this appeal, Ignasiak argues that the district court erred in accepting his

guilty plea because it was unknowing and involuntary. Second, Ignasiak argues


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the district court erred in allowing his reprosecution. Finally, Ignasiak argues that

the district court erred in finding the drug weight for which he was responsible and

incorrectly applied the Sentencing Guidelines in determining his sentencing range.

                                         II.
      Ignasiak first claims his plea was not voluntary because it was “insincere”

and ambivalent. Where a defendant claims for the first time on appeal that the

district court erred during his Rule 11 plea colloquy, we review for plain error.

United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). In order to

determine whether a defendant’s rights were substantially affected by a Rule 11

error, we have examined whether the overall plea colloquy adequately addresses

the three “core concerns” of Rule 11. Id. at 1354. We examine whether (1) the

plea was free from coercion; (2) the defendant understood the nature of the

charges; and (3) the defendant was aware of the direct consequences of his guilty

plea. Id. The defendant bears a heavy burden to show the district court erred

during his plea colloquy. United States v. Davila, 749 F.3d 982, 996 (11th Cir.

2014) (per curiam).

      Ignasiak’s assertion that his guilty plea was “insincere” is not enough to

overcome this burden. He must show more than that he “may be reluctant to tell

the truth.” Davila, 749 F.3d at 996.




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      Second, Ignasiak implies that because the district court did not tell him about

the impact Burrage v. United States, 571 U.S. 204, 134 S. Ct. 881 (2014), had on

his plea agreement, his guilty plea was not knowing or voluntary. Burrage

changed the burden required under the CSA to show that the particular drugs

distributed were the proximate cause of death. See 571 U.S. at 216, 134 S. Ct. at

891 (holding but-for causation was required to support conviction under “death

results” penalty enhancement provision). Ignasiak claims the district court

“expressly rejected” this causation definition, thereby misinforming Ignasiak “of

the true nature of the charges against him.” If Ignasiak had known the true nature

of the charges, he claims he would not have pled guilty.

      However, Ignasiak pled guilty on January 14, 2014. The Supreme Court

issued its decision in Burrage on January 27, 2014, so the district court had no

reason to inform Ignasiak of the Burrage decision. Moreover, a guilty plea is not

rendered involuntary by a subsequent change in the law. See Brady v. United

States, 397 U.S. 742, 757, 90 S. Ct. 1463, 1473 (1970). The Supreme Court has

expressly recognized that “the decision to plead guilty is [often] heavily influenced

by the defendant’s appraisal of the prosecution’s case against him and by the

apparent likelihood of securing leniency should a guilty plea be offered and

accepted.” Id. at 756, 90 S. Ct. at 1473. This is the case here. Ignasiak noted that

he pled guilty “in consideration for” the dismissal of the two counts related to


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B.E.’s and M.B.’s deaths. But it is well-established that a defendant “is not

entitled to withdraw his plea merely because he discovers long after the plea has

been accepted that his calculus misapprehended the quality of the State’s case or

the likely penalties attached to alternative courses of action.” Id. at 757, 90 S. Ct.

at 1473. The district court did not commit any error and Ignasiak’s rights were not

substantially affected by any purported failure to inform Ignasiak about the

Supreme Court’s decision in Burrage.

                                          III.

      Although Ignasiak’s knowing and voluntary guilty plea waives all non-

jurisdictional defects in the proceedings, he may still challenge the indictment on

jurisdictional grounds. United States v. Saac, 632 F.3d 1203, 1208 (11th Cir.

2011). In other words, “a guilty plea does not waive the right of an accused to

challenge the constitutionality of the statute under which he is convicted.” Id.

(quotation marks omitted and alterations adopted).

      Constitutional objections not raised before the district court are reviewed for

plain error. United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005) (per

curiam). A party may establish plain error by showing that: (1) there was an error;

(2) the error was plain or obvious; (3) the error affected his substantial rights in

that it was prejudicial and not harmless; and (4) the error seriously affected the

fairness, integrity, or public reputation of the district court proceedings. United


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States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993). Ignasiak

challenges his indictment on two grounds.

A. Neither the Tenth Amendment Nor the CSA Bar the Indictment.

       Ignasiak argues that his actions comported with Florida’s standards

governing the practice of medicine. He says that both the Tenth Amendment and

Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904 (2006),1 prevent the government

from enforcing the CSA because the regulation of the practice of medicine is a

right reserved to states, not the federal government. Relatedly, Ignasiak argues that

his conviction violates the CSA because the CSA “forbids the Attorney General or

the courts from creating national standards for practicing medicine.”

       We have held that “Congress’s valid exercise of authority delegated to it

under the Constitution does not violate the Tenth Amendment.” United States v.

Williams, 121 F.3d 615, 620 (11th Cir. 1997) (quotation marks omitted). It is

firmly established that Congress has the “power to regulate purely local activities


       1
          In Gonzales, the Supreme Court held that the CSA does not authorize the United States
Attorney General to prohibit doctors from dispensing controlled substances for assisted suicide
in the face of a state medical regime permitting such conduct and given the CSA’s silence on the
practice of medicine generally. 546 U.S. at 274–75, 126 S. Ct. at 925. Gonzales involved an
interpretive rule issued by the Attorney General that said a physician violates the CSA if he
prescribes, dispenses, or administers controlled substances to assist suicide. Gonzales, 546 U.S.
at 254, 126 S. Ct. at 913–14. That interpretive rule conflicted with an Oregon law that allowed
physicians to dispense or prescribe a lethal dose of drugs at the request of a terminally ill patient.
Id. at 249, 126 S. Ct. at 911. The Supreme Court explained “there is no question that the Federal
Government can set uniform national standards” of medical practice, id. at 271, 126 S. Ct. at
923, but the Court concluded that the CSA “manifests no intent to regulate the practice of
medicine generally,” id. at 270, 126 S. Ct. at 923.

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that are part of an economic ‘class of activities’ that have a substantial effect on

interstate commerce.” Gonzalez v. Raich, 545 U.S. 1, 17, 125 S. Ct. 2195, 2205

(2005). We have recognized that one such activity—local distribution and

possession of controlled substances—has a substantial and direct effect upon

interstate commerce. United States v. Collier, 478 F.2d 268, 272–73 (5th Cir.

1973). 2 And in that circumstance, we specifically rejected the argument that the

Tenth Amendment invades a state’s power to control medical practice. Id. We

reject Ignasiak’s Tenth Amendment argument for the same reasons.

       Similarly, our precedent compels the conclusion that the CSA is a valid

exercise of federal power. Raich, 545 U.S. at 9, 125 S. Ct. at 2201; United States

v. Joseph, 709 F.3d 1082, 1094, 1103 (11th Cir. 2013) (distinguishing Gonzales v.

Oregon because Gonzales did not determine whether the jury was required to find

the defendants acted in accord with an accepted standard of professional practice).

Under the CSA, except as authorized, it is unlawful for a person to knowingly or

intentionally distribute or dispense a controlled substance. 21 U.S.C. § 841(a)(1).

One authorized exception permits licensed doctors to dispense controlled

substances with prescriptions. 21 U.S.C. § 829(a), (b). In prosecuting a doctor

under § 841, the question is not whether a doctor’s activities comported with a


       2
         In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.

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single national standard of medical practice, but whether he “dispensed [or

distributed] controlled substances for other than legitimate medical purposes in the

usual course of professional practice, and that he did so knowingly and

intentionally.” Joseph, 709 F.3d at 1094, 1103; see 21 C.F.R. § 1306.04(a). The

government was therefore required to “prove that the actions of the defendant[]

were inconsistent with any accepted standard of professional practice.” Joseph,

709 F.3d at 1095.

      The government did just that. The indictment charged Ignasiak with

prescribing large amounts of controlled substances outside the usual course of

medical practice and for other than legitimate medical purposes. This language in

the indictment tracks the CSA and does not suggest Ignasiak’s conduct must be

evaluated against a single national standard of medical practice. See Joseph, 709

F.3d at 1094, 1103.

      The district court did not plainly err in allowing Ignasiak’s prosecution

under the CSA because Congress acted within its constitutional authority when

enacting the CSA and, thus, his prosecution did not violate the Tenth Amendment.

B. Ignasiak’s Reprosecution Does Not Violate the Double Jeopardy Clause.
      Third, Ignasiak argues the government’s second prosecution of him violates

the Constitution’s Double Jeopardy Clause. We review double jeopardy claims not

raised before the district court for plain error. United States v. Bobb, 577 F.3d


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1366, 1371 (11th Cir. 2009). The Fifth Amendment’s Double Jeopardy Clause

guarantees against (1) a second prosecution for the same offense after acquittal, (2)

a second prosecution for the same offense after conviction, and (3) multiple

punishments for the same offense. Id.

      However, the Double Jeopardy Clause is not an absolute bar to successive

trials. Generally, the Clause does not bar reprosecution of a defendant whose

conviction is overturned on appeal. Justices of Bos. Mun. Court v. Lydon, 466

U.S. 294, 308, 104 S. Ct. 1805, 1813 (1984). Retrial is permitted after a conviction

is reversed on appeal if the grounds on which the case was reversed are unrelated

to the defendant’s guilt or innocence. Montana v. Hall, 481 U.S. 400, 402–03, 107

S. Ct. 1825, 1826 (1987) (per curiam); see also United States v. Adkinson, 135

F.3d 1363, 1379 n.46 (11th Cir. 1998) (noting convictions reversed for trial error

are subject to retrial). In the previous appeal, this Court overturned Ignasiak’s

conviction based on an evidentiary ruling that violated the Confrontation Clause.

Ignasiak, 667 F.3d at 1231. That violation is not related to Ignasiak’s guilt or

innocence, so the government was not barred from reprosecution.

                                         IV.
      Finally, Ignasiak challenges the calculation of his guideline sentence. We

review de novo the district court’s application of the Sentencing Guidelines,

United States v. Norris, 452 F.3d 1275, 1280 (11th Cir. 2006), but we review for


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clear error the factual determination on the quantity of drugs used to establish a

base offense level for sentencing, United States v. Simpson, 228 F.3d 1294, 1298

(11th Cir. 2000). When a defendant objects to a factual finding that is used in

calculating his guideline sentence, such as drug amount, 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).

      Ignasiak first argues that his Presentence Investigation Report’s (“PSI”)

reference to the dismissed charges related to the deaths of B.E. and M.B. rendered

his guideline range inaccurate because the information about the patients’ deaths

should not have been considered for purposes of increasing his sentence. This

argument is not supported by the record. In calculating Ignasiak’s base offense

level, the PSI used the drug weight but did not mention or take into consideration

the death-related charges in calculating the guideline range. Those charges were

mentioned only at the end of the PSI in the discussion of reasons for a possible

departure. The district court did not depart from the guidelines here, so the deaths

did not increase Ignasiak’s sentence.

      Second, Ignasiak claims that the district court committed a procedural error

in calculating his sentence by applying the wrong guideline methodology in

determining his relevant conduct and selecting an offense level that was too high.

He relies on the Sentencing Commission’s amendment to U.S.S.G. § 1B1.3 (2015),


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which altered the guideline methodology for determining “relevant conduct.” He

claims that amendment applies retroactively to his case and, as such, the district

court failed to (1) conduct a “relevant conduct hearing” and (2) use methodology

required by the Guidelines. He argues that, if the district court had properly

considered his relevant conduct, the drug weight in the PSI would have been lower.

      The base offense level for a drug distribution offense is calculated by

determining the quantity of drugs attributable to a defendant. See U.S.S.G.

§ 2D1.1(a)(5) (2013). The Guidelines also provide that types and quantities of

drugs not specified in the conviction are to be included, as relevant conduct, in

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

common scheme, or plan as the count of conviction. Id. § 1B1.3(a)(2), comment.

(n. 3) (2013); id. § 2D1.1, comment. (n. 5) (2013). “For two or more offenses to

constitute part of a common scheme or plan, they must be substantially connected

to each other by at least one common factor, such as common victims, common

accomplices, common purpose, or similar modus operandi.” Id. § 1B1.3,

comment. (n. 9(A)) (2013). We broadly interpret the provisions of the relevant-

conduct guideline. United States v. Behr, 93 F.3d 764, 765 (11th Cir. 1996) (per

curiam). All of a defendant’s relevant conduct, including acquitted conduct and

conduct not mentioned in an indictment, may be considered at sentencing. United

States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir. 2006).


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      The PSI recommended that Ignasiak’s base level be set at 36, pursuant to

U.S.S.G. § 2D1.1 (2008)—the guideline level applying to 10,000 to 30,000

kilograms of marijuana—because Ignasiak prescribed 81,830 pills of hydrocodone

and 44,792 pills of oxycodone, the total equivalent of 13,917.8 kilograms of

marijuana. It also recommended that the base offense level be adjusted upward

four levels for vulnerable victims (addicts), see § 3A1.1, two levels for abuse of a

special skill (the practice of medicine), see § 3B1.3, and two levels for obstruction

of justice (absconding and failing to appear for trial), see § 3C1.1. With a total

offense level of 44 and a criminal history category of I, Ignasiak’s resulting

guideline range would be life imprisonment. Ignasiak filed written objections to

this calculation of the drug amount and raised these objections again at sentencing.

The district court found the PSI to be accurate and ordered Ignasiak to serve a total

term of 360 months. On appeal, Ignasiak does not dispute the drug quantities, but

instead claims that the district court did not adhere to the methodology required by

the Guidelines and therefore did not perform the “proper relevant-conduct

calculation” for the “drug-weight portion” of his sentence.

      The district court did not clearly err in considering the totality of Ignasiak’s

conduct. Ignasiak pled guilty to his involvement in a scheme of prescribing drugs

to patients who did not need them, for his own gain, while also defrauding

healthcare companies. At sentencing he conceded that, under the CSA, courts


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“must take into account . . . all controlled substances for which the defendant’s

relevant conduct may be attributable.” The drugs Ignasiak prescribed were all part

of an ongoing series of offenses charged in the indictment. Each offense involved

nearly identical conduct. Because the prescriptions were part of the same course of

conduct, the district court properly considered the drug weight of all the

prescriptions even though only a portion of them were charged in the indictment.

See U.S.S.G. § 1B1.3, comment. (n.3).

      Neither did the district court err in calculating Ignasiak’s sentence under the

Guidelines. The majority of the drug weight for which Ignasiak was prosecuted

came from oxycodone, which was based on fewer prescriptions and was charged

only once in the indictment. However, the presence of oxycodone in the drug

weight calculations does not necessarily render the estimates unreasonable. The

record showed that Ignasiak had over 3,000 patients, 95% of whom were

prescribed drugs beyond the usual course of professional practice. The total drug

weight for which Ignasiak was prosecuted was based on the prescriptions from

only 55 of his patients—roughly 2% of the total patients—and was equivalent to

over 14,000 kilograms of marijuana. Ignasiak does not dispute that he prescribed

the drugs considered at sentencing, and if the government had chosen to calculate

the drug weight for any other patients not included in the indictment, the total drug

weight would likely have been far higher.


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      Ignasiak’s reliance on the amendment to U.S.S.G. § 1B1.3 (2015), is also

unavailing. The government correctly points out that the amendment changed only

the provision dealing with “jointly undertaken criminal activity.” See United

States v. Presendieu, 880 F.3d 1228, 1245 (11th Cir. 2018). In his reply brief,

Ignasiak argues that because nurses, patients, and patient support groups were

involved in his offense, they shared responsibility and he should not have been

held wholly responsible for his conduct. But we do not address arguments made

for the first time in a reply brief. United States v. Levy, 379 F.3d 1241, 1244 (11th

Cir. 2004) (per curiam).

      Because the district court did not clearly err in determining the quantity of

drugs for which Ignasiak was responsible and did not err in applying the

Guidelines, we affirm Ignasiak’s sentence.

      AFFIRMED.




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