                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4949


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

PAUL PHOTIADIS BOCCONE,

                Defendant - Appellant.



                             No. 12-4952


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CHARLES BROWN, JR.,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Claude M. Hilton, Senior
District Judge. (1:11-cr-00592-CMH-1; 1:11-cr-00592-CMH-2)


Argued:   October 31, 2013                 Decided:   February 20, 2014


Before NIEMEYER and WYNN, Circuit Judges, and Louise W.
FLANAGAN, United States District Judge for the Eastern District
of North Carolina, sitting by designation.
Affirmed by unpublished opinion.      Judge Flanagan wrote    the
opinion, in which Judge Niemeyer and Judge Wynn joined.


ARGUED: John O. Iweanoge, II, THE IWEANOGES' LAW FIRM, P.C.,
Washington, D.C.; Emma Mittelstaedt Burnham, BAKER BOTTS,
L.L.P., Washington, D.C., for Appellants.      Michael Phillip
Ben'Ary, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.   ON BRIEF: William H. Jeffress, Jr.,
Nicholas C. Margida, BAKER BOTTS L.L.P., Washington, D.C., for
Appellant Charles Brown, Jr. Neil H. MacBride, United States
Attorney, Marc J. Birnbaum, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
FLANAGAN, District Judge:

       Following      a    four-day       trial,        a   jury       convicted        appellants

Paul    Photiadis         Boccone      and     Charles       Brown,         Jr.,    of    multiple

charges related to illegal distribution of prescription drugs.

Boccone was convicted of additional health care fraud and tax

charges.     The      convictions         arose       from     Boccone’s           operation       of

Chantilly Specialists, a pain management clinic in Chantilly,

Virginia,       and       Brown’s       participation             as    a     licensed       nurse

practitioner in the clinic’s operations.                           On appeal, Boccone and

Brown     challenge        their       convictions          and    sentences         on    several

grounds,        including           admissibility             of        expert          testimony,

sufficiency of the evidence, and procedural reasonableness of

the sentences.        For the reasons presented below, we affirm.

                                                 I.

       In an indictment filed December 22, 2011, the government

charged     Boccone         and     Brown        with       conspiracy         to       distribute

controlled      substances,         under        21   U.S.C.       §   846    (Count       1),   and

distribution of controlled substances, in violation of 21 U.S.C.

§   841(a)(1)      and     18   U.S.C.       §    2   (Boccone,         Counts      2-9;    Brown,

Counts 2, 7, 9).            Boccone also was charged with possession of a

firearm    in    relation         to    drug     trafficking,           under      18     U.S.C.    §

924(c) (Count 10), health care fraud, under 18 U.S.C. § 1347

(Counts 11-16), and failure to pay employment taxes, under 26

U.S.C. § 7202 (Counts 17-28).

                                                  3
     At    trial,       the      government         presented      testimony         by     former

employees and patients of Chantilly Specialists, relatives of

patients, as well as an expert witness in the field of pain

management. Appellants introduced testimony by Boccone, Brown,

and an expert with respect to the cause of death of several

patients.       The evidence, viewed in the light most favorable to

the government, may be summarized as follows.

     Boccone         was        the     owner       and      president          of     Chantilly

Specialists from late 2005 to around December, 2011.                                   He has a

Juris    Doctor      degree,       but    no    medical       training.          He     employed

several   medical        providers        at    Chantilly        Specialists,          including

Brown,    who     was      a    nurse     practitioner           licensed       to     prescribe

medication      under          Virginia    law       under       the    supervision         of    a

physician.        When Brown began work at Chantilly Specialists in

July 2009, Dr. Carol Currier was a physician employed at the

clinic, designated as supervising physician for Brown.                                 Dr. Joel

Match    took   over       in    this     position        from    Dr.    Currier       in      2011.

During the time that Dr. Currier was designated as supervising

physician,      and      for      some    of     the      time     that    Dr.       Match       was

designated      as      supervising        physician,            Boccone    also        provided

direction to Brown in his treatment of patients and prescribing

of medication.

     Boccone       and     Brown        interacted        nearly        every    day      at     the

office.     Boccone often was in the examination room with patients

                                                4
during medical appointments.                     Boccone interfered sometimes in

medical     treatment            decisions,          including          by     giving    medical

suggestions and opinions regarding medications and dosage.                                      In

some instances, Brown signed prescriptions that Boccone filled

out with medication amounts specified. Boccone also wore a lab

coat and sometimes referred to himself as “Dr. Boccone.”

       In contrast to Boccone and Brown, Dr. Currier generally was

present at Chantilly Specialists only once or twice a week. She

was not told of positive drug screens, and she was not told of

patient deaths, except once, although she had asked to be kept

informed of such information.

       After         Dr.     Match        started           employment          at      Chantilly

Specialists, Boccone sometimes steered patients from Dr. Match

to    Brown,    the    result      being     that         they    would      continue     to   get

medications they were on before, whereas Dr. Match would have

reduced medication pending clinical tests.                               After August 2011,

Dr.    Match     realized         that    Brown           did    not    always       follow    his

instructions and ultimately recommended that Boccone terminate

Brown.     Dr. Match, like Dr. Currier, was not aware of the full

extent of treatment practices at Chantilly Specialists.

       Regarding typical practices at the clinic, patient visits

generally were limited to fifteen to twenty minutes.                                      Boccone

directed       use    of   an    egg     timer       to    limit       visit    times.        Brown

generally      would       see    about    four      patients          per   hour.       Patients

                                                 5
typically did not get physical examinations.                            They sometimes

received      medications     without       clinical           information     in        their

charts or documentation of treatment at other facilities. A lead

medical assistant employed at the clinic between January 2011

and   March    2012    observed      that   he      “found      unusual    the      massive

amounts of medications people were getting.”                      (JA 128).

      The waiting room was extremely crowded, and some patients

had   track    marks    and   exhibited         other     indicia       that   they      were

suffering from addiction or were in recovery. Many patients at

the   clinic    traveled      long    distances          for    their    prescriptions,

including six or seven hours away from locations in Kentucky,

West Virginia, and Tennessee.               Some patients became agitated or

angry if they did not get medications they sought, and police

frequently     responded      to     reports        of   unruly       patients      at    the

clinic.     As a result of the conditions in the office, Boccone

carried a firearm at work.

      The government presented testimony and evidence regarding

several former patients of Chantilly Specialists who received

prescriptions     following        office       visits         with   Brown.         Justin

McConnell was a patient between about 2008 and October 2011.                               At

his first visit, McConnell did not provide medical records from

prior     providers.     He    received         a    prescription         including        15




                                            6
milligrams of oxycodone, 1 which was an increase over the amount

he    claimed    he    was    receiving        from    a    podiatrist      at     the   time.

McConnell never received a physical examination while a patient

at Chantilly Specialists, and he never saw Dr. Currier. As his

tolerance       grew    for     pain     medications,         McConnell       received     an

increase in prescriptions to the point that he was addicted to

the    medication,       and       he   was    receiving          prescriptions      for   80

milligram       OxyContin       and     30     milligram          oxycodone       pills,   in

addition to other medications. At times, Brown called McConnell

on    his   personal     cell      phone,     and     McConnell      was    nervous      about

prescriptions being changed depending on whether he called Brown

back. Brown made McConnell uncomfortable by giving him “bear

hug[s]” and sitting on his lap in the office.                        (JA 192).

       Eric Honesty was a patient from about August 2008 until

February     2011.       Honesty’s        typical          appointments      took    ten   to

fifteen minutes, and he never received any physical examination

at    Chantilly       Specialists.            Boccone       and    Brown    were    involved

jointly     with      some    of    Honesty’s       medical        visits    at    Chantilly

Specialists, and they increased his prescriptions over time up

       1
       “Oxycodone is a potent and addictive opioid that is
classified as a Schedule II drug under the Controlled Substances
Act.” United States v. McIver, 470 F.3d 550, 553 n.3 (4th Cir.
2006) (citing 21 U.S.C. § 812 (2000); 21 C.F.R. § 1308.12(b)(1)
(2004)). “It is marketed in instant-release form under trade
names such as Roxicodone, Roxicet, OxyIR, and OxyFAST, and in a
controlled release form as OxyContin.” Id.



                                               7
to 680 to 700 narcotic pain pills per month.                         At one visit,

Honesty agreed to return 80 milligram OxyContin pills to Boccone

and   Brown    in     exchange    for   a       prescription      increase.      Honesty

returned “thousands” of 80 milligram pills in this manner.                            (JA

337). Three times when he attempted to take the medications as

written   in    his    prescriptions,           he   overdosed.      At    one    point,

Boccone and Brown instructed Honesty to take only half of the

pills they had prescribed for him. During the time that Honesty

was a patient at Chantilly Specialists, Honesty was charged with

unlawful distribution of oxycodone, some of which he obtained by

filling prescriptions issued by Brown.

      King Dao was a patient from approximately 2009 to 2011.                         He

received pain medications, including 80 milligram OxyContin and

30 milligram oxycodone pills, following appointments with Brown

and at times at direction of Boccone.                    He received medications

despite   having      been     tested   positive       for   cocaine,      and   at   one

point he received medications after having spent 78 days in jail

following      an     arrest     for    prescription         fraud    at     Chantilly

Specialists, with no medical examination.

      Michael Rogers was a patient from 2007 to the date of his

death, on April 8, 2010. He drove about six hours from Johnson

City, Tennessee to receive prescriptions at the clinic.                          Boccone

directed an increase in his pain medications in February 2009,

to 80 milligram OxyContin and 30 milligram Roxicodone pills, a

                                            8
level that was maintained by providers, including Brown, until

Rogers’s       death.      Brown      admitted    making     changes     to     Rogers’s

medical chart after learning of Rogers’s death.

        The government also introduced testimony and a report of an

expert witness qualified in the field of pain management, Dr.

Robin Hamill-Ruth. Testifying as to standards of practice in the

field     of     pain     management,      she     summarized       guidelines         for

prescribing medications for chronic pain, as well as standards

for evaluations, referrals, documentation, periodic review and

examinations.            Dr.   Hamill-Ruth       also    identified      “red    flags”

indicating      patients       with    problems    with    addiction,         abuse,    or

diversion of medication, which would signal to a provider that

there    is     not     legitimate     medical     purpose    for      prescriptions.

These include traveling long distances to receive medications,

early     refills,       frequent      calls,     lost    prescriptions,        violent

behavior, and receiving treatment from multiple providers.                             She

also described the significance of 80 milligram OxyContin pills,

which is a high dosage amount that she had never prescribed in

her twenty-five years of pain management practice.

     In addition, Dr. Hamill-Ruth outlined her review of certain

patient records, including those for Honesty, Dao, and Rogers,

underlying individual distribution charges in this case.                               For

each patient reviewed, Dr. Hamill-Ruth concluded that the entire

course    of    treatment      was    outside     the    bounds   of    the    accepted

                                           9
standard      of    care    for    pain    management     practice       and   for    no

legitimate medical purpose.               She cited in each case indicia that

should have led a reasonable, licensed medical practitioner to

cease    or     reduce       making    prescriptions,          require     diagnostic

examinations, and monitor patients to ensure legitimate medical

care.

       Finally,      the     government      introduced    testimony       regarding

Boccone’s health care billing fraud and failure to pay taxes.

With    respect      to    billing    fraud,     the   provider    listed      in    the

medical record for one medical visit was Boccone, whereas the

provider billed to Medicare was a physician’s assistant.                             With

respect to the tax charges, Boccone failed to pay employment

taxes despite withholding tax from employee paychecks.

       Upon the close of the government’s evidence, the government

voluntarily        moved    to   dismiss    three   of   the    health    care   fraud

charges (Counts 11, 12, and 13), which motion the district court

granted.       Defendants moved for judgment of acquittal at that

time, and again moved for judgment of acquittal following the

close of their case, which the district court denied.

       Following closing argument and jury instructions, the jury

found Boccone guilty of the conspiracy charge (Count 1), six of

the distribution charges (Counts 2, 3, 4, 5, 7, and 9), one

health care fraud charge (Count 14), and all of the tax charges

(Counts 17-28).           The jury found Boccone not guilty of two of the

                                            10
distribution         charges    (Counts      6     and   8),    and    possession     of    a

firearm in furtherance of a drug trafficking crime (Count 10).

The jury found Brown guilty of the conspiracy charge (Count 1)

and all three of the distribution charges against him (Counts 2,

7, 9).        Finally, the jury found that death did not result from

the use of the substance distributed in Count 9, for patient

Rogers.

     In       preparation       for     sentencing,            the    probation      office

prepared       a    presentence      report,       which   calculated        a   guideline

range    of    360    months    to    life    imprisonment           for   Boccone   and    a

guideline range of 188 to 235 months imprisonment for Brown.

After adopting the guideline ranges in the presentence reports

without change, the court varied downward, sentencing Boccone to

180 months imprisonment and Brown to 60 months imprisonment.

These appeals followed.

                                             II.

                                             A.

        We address first Boccone’s argument that the district court

erred in allowing admission of the expert report and testimony

of Dr. Hamill-Ruth.

     “We review for abuse of discretion the district court’s

decision       to    admit     expert   testimony          under      Federal     Rule     of

Evidence 702.”         United States v. Wilson, 484 F.3d 267, 273 (4th

Cir. 2007) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137,

                                             11
152 (1999)). “We will not vacate a conviction unless we find

that the district court judge acted arbitrarily or irrationally

in admitting evidence.”               United States v. Basham, 561 F.3d 302,

326 (4th Cir. 2009) (internal quotations omitted).                          In addition,

evidentiary        rulings     are        subject     to     harmless     error        review.

United States v. Mouzone, 687 F.3d 207, 216 (4th Cir. 2012).

       Federal Rule of Evidence 702 provides:

       A witness who is qualified as an expert by knowledge,
       skill, experience, training, or education may testify
       in the form of an opinion or otherwise if: (a) the
       expert's scientific, technical, or other specialized
       knowledge will help the trier of fact to understand
       the evidence or to determine a fact in issue; (b) the
       testimony is based on sufficient facts or data; (c)
       the testimony is the product of reliable principles
       and methods; and (d) the expert has reliably applied
       the principles and methods to the facts of the case.

Fed.    R.    Evid.     702.     “A       ‘trial     judge   must   have    considerable

leeway       in   deciding     in     a    particular        case   how    to     go    about

determining       whether      particular       expert       testimony     is   reliable.”

Wilson, 484 F.3d at 273 (quoting Kumho Tire, 526 U.S. at 152).

“Thus, ‘Rule 702 grants the district judge the discretionary

authority, reviewable for its abuse, to determine reliability in

light    of       the    particular         facts     and     circumstances        of     the

particular case.’”          Id. (quoting Kumho Tire, 526 U.S. at 158).

       The government contends as an initial matter that we need

not reach Boccone’s arguments as to admissibility of Dr. Hamill-

Ruth’s       testimony    because         it   was    irrelevant     with       respect    to


                                               12
Boccone’s distribution of controlled substances.                           The government

points out correctly that to convict Boccone of distribution of

controlled substances, it need only show that Boccone, not a

licensed        medical         provider,           distributed       or     caused        the

distribution       of      a    controlled          substance.     See     21     U.S.C.     §

841(a)(1); 18 U.S.C. § 2.

       Nevertheless, Boccone is charged in this case not only with

distributing       controlled         substances       individually,        but    also     in

concert with and in conspiracy with other medical providers,

particularly       Brown.        In     order    to    convict    a     licensed    medical

provider of unlawful distribution of controlled substances, the

government must prove that the provider’s “‘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

(4th Cir. 1995) (quoting United States v. Tran Trong Cuong, 18

F.3d    1132,     1141     (4th       Cir.1994)).           As    discussed       below     in

addressing       the       sufficiency          of      the      evidence,        Boccone’s

convictions may rest at least in part on the theory that Boccone

directed     Brown       to     issue     prescriptions          that      were    not     for

legitimate medical purposes or were beyond the bounds of medical

practices.

       Accordingly, expert testimony regarding whether treatment

in   this   case     was       beyond    the    bounds      of   medical     practice       is

                                               13
relevant      to    the   counts        of     conviction       against    both   Brown      and

Boccone.      We turn, therefore, to address Boccone’s arguments as

to the admissibility of that testimony.

       Boccone       contends          that     Dr.   Hamill-Ruth’s          testimony       and

report does not meet the standards set forth in Fed. R. Evid.

702 for multiple reasons, including that Dr. Hamill-Ruth (1) did

not accurately set forth the standards of model policies and

guidance on prescribing narcotics, (2) used only sixteen hours

to review thousands of pages of medical records, (3) did not

examine any of the patients referred in her report, (4) did not

adequately         specify    records           reviewed,       and    (5)    stated     legal

conclusions such as “it is illegal” within her written report.

       This court previously has upheld the use of expert medical

testimony      similar       in    many       respects     to    the   testimony       of    Dr.

Hamill-Ruth.         For example, in United States v. McIver, 470 F.3d

550    (4th   Cir.    2006),       the        government    offered       testimony     of    an

anesthesiologist qualified as an expert in pain management, who

concluded, “[b]ased on his review of certain patient records,”

that    the   “treatment          of    several       of   Appellant’s       patients       fell

outside the parameters of legitimate medical practice.”                                Id. at

556.    For one patient, he opined that “there was ‘no legitimate

reason to be prescribing’ combinations of opioids in such high

doses based on the patient’s medical conditions,” and in light

of the patient’s “history of drug abuse.” Id. For another, he

                                                 14
testified      that     it   was    “outside         the       legitimate       practice         of

medicine for Appellant to prescribe high doses of opioids given

[the patient’s] history of negative drug screens.”                             Id.

      Similarly, in United States v. Allere, 430 F.3d 681 (4th

Cir. 2005), a physician qualified as an expert reviewed selected

medical files in evaluating whether prescriptions were issued

outside the scope of legitimate medical practice. Id. at 686.

The   expert     testified       that      “many     of       the    prescriptions        lacked

appropriate documentation or had no ‘follow up’ treatment, that

the defendants ignored ‘red flags’ indicative of drug abuse, and

that certain prescriptions and dosages were inappropriate.”                                    Id.

      Likewise, in Tran Trong Cuong, an expert provided testimony

following a medical file review, opining, for example, “that

persons claiming . . . severe pain over a long period of time

should    have    had    additional         reports       in        their   files    of    x-ray

examinations,       blood     tests     and      other        procedures     attempting          to

identify the source of the pain.” Id.; see also United States v.

Hurwitz, 459 F.3d 463, 467 (4th Cir. 2006) (“The government’s

expert     witnesses         testified        that        a     doctor       who     knowingly

prescribed opioids to an addict or to a patient the doctor knew

was   selling    the     drugs     on   the      street        was    acting    outside         the

bounds of legitimate medical practice”); Singh, 54 F.3d at 1187

&   n.3   (expert     testified       as    to     “the       inappropriateness           of    the



                                              15
prescriptions,” upon review of “information relating to” each

patient).

      In    this   case,      Dr.   Hamill-Ruth           was   qualified,    without

objection, as an expert in pain management.                          Similar to the

expert testimony in McIver, Allere, and Tran Trong Cuong, Dr.

Hamill-Ruth described her understanding of the standard of care

for   treating     patients    in   a    pain     management     context     and   then

compared the treatment shown in the medical records in the case

with that standard of care, finding the treatment shown to be

outside legitimate medical practice.                 In doing so, she cited red

flags similar to those identified by experts in the cases noted

above, including negative drug screens, lack of documentation

and follow up treatment for medical conditions, prescriptions

over a long period of time without medical examinations, high

dosage     combinations,      and   prescriptions          despite   signs   of    drug

addiction or street sales. (JA 3827-3836; 536-551).

      In light of Dr. Hamill-Ruth’s qualifications and detailed

manner in which she outlined her review of patient records and

evidence considered as a basis for her opinions, we conclude

that her testimony and report were both scientifically valid and

helpful to the jury.          Contrary to Boccone’s argument here, there

is no requirement in our precedent that the expert must examine

the patients whose files are reviewed, or set forth a particular

model    policy    or   standard,       or    cite   to    particular    records    or

                                             16
amounts    of    records          for    any   particular      patient.        Rather,   the

points of criticism raised by Boccone go to the weight of the

testimony,       and    these       points      were   open     for      exploration     upon

cross-examination of the expert witness. 2                          Indeed, as the court

noted in McIver, such cross-examination enabled the appellants

to    point     out    “varying          theories     of    pain     management,    .    .   .

differences in points of view as to appropriate levels of pain

medication,”          and    make       challenges     to     the    expert’s    “opinions

regarding       [the    appellant’s]           treatment      of    specific    patients.”

McIver, 470 F.3d at 556.

       We address separately Boccone’s argument that the report

improperly states a legal conclusion, referencing in particular

the   statement        by     Dr.       Hamill-Ruth    that    “[i]t      is   illegal   and

grossly substandard for a person without medical license and DEA

registration to make therapeutic decisions and alter prescribing

of controlled substances.” (JA 3828).                       This statement is made in

the   context     of        Dr.    Hamill-Ruth’s       review       of   Rogers’s   medical

file, in which Boccone directs medication dosage and treatment

for Rogers in an office visit note.                    (Id.).

       2
       Boccone also urges the court to consider a report prepared
by Jason Brajer, MD, approximately two months following the jury
verdicts in this case. Dr. Brajer comments upon and provides a
counter-point to conclusions reached by Dr. Hamill-Ruth in her
expert report. In the same vein as the criticisms noted above,
the points raised by Dr. Brajer more properly go to the weight
of the testimony rather than its admissibility.



                                                17
       This court has observed that “opinion testimony that states

a legal standard or draws a legal conclusion by applying law to

the facts is generally inadmissible.” McIver, 470 F.3d at 562.

Nevertheless, an expert may testify that treatment was “outside

the bounds of . . . professional medical practice,” or that

“treatment       of     certain      patients      was        either       illegitimate         or

inappropriate.”          Id.      Such language “falls within the limited

vernacular that is available to express whether a doctor acted

outside the bounds of his professional practice.”                               Id.

       In accord with McIver, the expert’s statement here that “it

is illegal and grossly substandard” for a person without medical

license to make therapeutic decisions, in reference to Boccone’s

involvement in treatment of Rogers, reasonably articulates the

extent of departure from usual professional practice in this

case.         The      statement      thus        is    relevant           to     the    jury’s

determination that treatment of Rogers was “outside the bounds

of . . . professional medical practice.”                             Id.        In any event,

even    assuming      that     the   reference         to   “it   is       illegal”     crossed

outside    of    the    “limited      vernacular,”            id.,    available         in    this

context    to    describe       legitimate        medical      practice,          we    conclude

that    the     error    was    harmless,       given       the      weight       of    evidence

against Boccone apart from that reference in Dr. Hamill-Ruth’s

report.       See United States v. McLean, 715 F.3d 129, 143 (4th

Cir.    2013)    (“[W]e      need    only    say       with    fair     assurance,           after

                                             18
pondering      all    that   happened      without    stripping         the    erroneous

action from the whole, that the judgment was not substantially

swayed by the error.”) (internal quotations omitted).

       In sum, the district court properly admitted Dr. Hamill-

Ruth’s testimony and report, and Boccone cannot establish error

warranting     reversal      of    his    convictions      on   the    basis    of   such

testimony and report.

                                           B.

       Appellants      argue      that    the    evidence   was       insufficient    to

convict them of any of the counts of conviction.

       We must sustain the jury’s verdict “if there is substantial

evidence, taking the view most favorable to the Government, to

support [the convictions].”                United States v. Moye, 454 F.3d

390,     394   (4th     Cir.      2006)    (en     banc)    (internal         quotations

omitted). “[S]ubstantial evidence is evidence that a reasonable

finder    of   fact    could      accept    as    adequate      and    sufficient     to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc).         In reviewing a sufficiency argument, we “must

consider circumstantial as well as direct evidence, and 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).                        In addition,

we “may not weigh the evidence or review the credibility of the

                                           19
witnesses,”    as    “those    functions    are   reserved    for    the   jury.”

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).

                                       1.

     We address first the sufficiency of the evidence to convict

appellants    of     the      individual    counts    of     distribution     of

controlled substances under 21 U.S.C. § 841.

     Section 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.” 21 U.S.C. § 841(a)(1).                   An exception

pertinent to this case is set forth in § 822(b), which provides:

     Persons registered by the Attorney General under this
     subchapter to manufacture, distribute, or dispense
     controlled   substances or   list   I  chemicals   are
     authorized to possess, manufacture, distribute, or
     dispense such substances or chemicals (including any
     such activity in the conduct of research) to the
     extent   authorized  by  their  registration  and   in
     conformity   with   the  other  provisions   of   this
     subchapter.

Id. § 822(b).       As the court previously has observed, 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.’”

Hurwitz, 459 F.3d at 475 (citing 21 C.F.R. § 1306.04(a)).

     Thus, to convict a medical practitioner under § 841(a)(1),

the government must prove that (1) the defendant “distributed or

                                       20
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.”                                Singh,

54 F.3d at 1187 (quoting Tran Trong Cuong, 18 F.3d at 1141).

“[T]here are no specific guidelines concerning what is required

to support a conclusion that an accused acted outside the usual

course of professional practice.”                 Id. (quoting United States v.

August, 984 F.2d 705, 713 (6th Cir. 1992)).                     “Rather, the courts

must engage in a case-by-case analysis of evidence to determine

whether    a    reasonable     inference         of   guilt    may       be       drawn   from

specific facts.”        Id. (quoting August, 984 F.2d at 713).

     A    defendant’s        “good   faith”      generally       is      relevant         to   a

jury’s determination of whether a defendant acted outside the

bounds    of    accepted     medical      practice     or     without         a   legitimate

medical purpose.        Hurwitz, 459 F.3d at 476 & 480.                   Accordingly a

defendant      cannot   be    convicted      “if      he   merely     made         an   honest

effort to prescribe in compliance with an accepted standard of

medical   practice.”          Id.    at   476-77      (quoting    United           States      v.

Moore, 423 U.S. 122, 142 (1975)).                 Good faith in this context is

an objective rather than subjective standard, meaning that “good

faith is not merely a doctor’s sincere intention towards the

people    who    come   to    see    him,    but,      rather,      it    involves          his

sincerity in attempting to conduct himself in accordance with a

                                            21
standard of medical practice generally recognized and accepted

in the country.” Id. at 478 (quoting United States v. Hayes, 794

F.2d 1348, 1351 (9th Cir. 1986)).

     Brown contends that he should be subjected to a different

standard because, as a nurse practitioner in Virginia, he was

authorized to prescribe only under supervision of a licensed

physician.     Brown fails to articulate, however, the manner in

which   the   elements    of    the    distribution        offense     should   be

different for a nurse practitioner as opposed to a physician.

Indeed, the district court’s jury instructions set forth the

government’s burden of proof in terms which apply equally to

physicians    and   others     “licensed    and    authorized     to    prescribe

controlled    substances.”       (JA   818).       In   accordance      with    the

standards set forth above, the district court instructed the

jury that the government must prove beyond a reasonable doubt

“that   the   defendant   or    defendants’       action   were   not    for    the

legitimate medical purposes in the usual course of professional

practice or were beyond the bounds of medical practice.”                        (JA

817).   Under these instructions, Brown, as a nurse practitioner,

is held to the same standard of practice as any other licensed

medical practitioner, namely the requirement to make an “honest

effort to treat his patients in compliance with the accepted

standards of medicine.”         (JA 818) (emphasis added).              Brown did



                                       22
not object to these instructions. Nor does he contend on appeal

that the jury instructions were improper.

       Brown    contends,        nonetheless,         that    the      government     was

required to introduce evidence that his conduct fell below a

standard of practice for a nurse practitioner, as opposed to the

standard of practice for a physician, and that the government

did not do so in this case.                 We are not persuaded by Brown’s

premise   that       the   standard    of   medical        practice     should   be   any

different      for     a    nurse     practitioner         licensed      to   prescribe

medication and a physician licensed to prescribe medication.                           In

both instances the prescription – whether by a physician or a

nurse practitioner – must be within the scope of usual medical

practice and for a legitimate purpose.                       A nurse practitioner,

like any other medical practitioner, “is not free deliberately

to disregard prevailing standards of treatment.”                         Hurwitz, 459

F.3d at 479 (quoting United States v. Vamos, 797 F.2d 1146, 1151

(2d Cir. 1986)); see also United States v. Lawson, 682 F.2d 480

(4th    Cir.   1982)       (in   affirming       §    841(a)(1)        convictions     of

pharmacist, stating that one element is “whether [the defendant]

knew   that    the     purported      prescription         was   not    issued   for    a

legitimate medical purpose or in the usual course of medical

practice”).

       Brown    also       suggests    that      if    a     supervising      physician

authorizes a nurse practitioner to write prescriptions and does

                                            23
not revoke his ability to prescribe, then there is no basis to

convict    him     absent       further      evidence             that    he        “endeavored     to

conceal his prescriptions” or that the nurse and the physician

“are    deliberately           working        in           concert       to     issue       unlawful

prescriptions.”             (Brown Br. at 34).                According to Brown, in the

absence of such evidence of concealment or collusion, a nurse

practitioner       should       be    insulated             from    culpability           because    a

physician        has    agreed       to     allow           the    nurse       practitioner         to

prescribe medication.                Such a bright-line rule, however, runs

counter to this court’s prior recognition that “there are no

specific guidelines concerning what is required to support a

conclusion that an accused acted outside the usual course of

professional practice,” and the court “must engage in a case-by-

case    analysis       of    evidence       to     determine          whether         a   reasonable

inference of guilt may be drawn from specific facts.”                                     Singh, 54

F.3d at 1187 (quotations omitted).

       Contrary        to     Brown’s       suggestion,              although         evidence      of

concealment or collusion with a physician may be sufficient to

convict     a     nurse       practitioner             of     unlawful         distribution         of

controlled substances, such evidence is not necessary to secure

a conviction.          A reasonable jury may conclude based upon other

facts     and     circumstances           that         a     nurse       practitioner        issued

prescriptions          knowing       that    they          were     not       for    a    legitimate

purpose     or    were       outside        the        usual       course      of     professional

                                                  24
practice.           In this case, for instance, Brown was not merely

acting    in     isolation,           solely       under        direction       of    a     licensed

physician.          Rather, as we will detail below, this case involved

more     complex       relationships           between           a     non-physician          office

manager       who     took       an    active           role     in     treatment         decisions

(Boccone),      other       medical      and       non-medical          employees         (including

Brown),       and    supervising         physicians             who    did    not     maintain       a

constant presence in the practice (including Drs. Currier and

Match).

       With     these     considerations            in     mind,       we    now     turn    to    the

sufficiency of the evidence supporting the individual counts of

distribution         of   controlled       substances,               beginning       with    Brown’s

convictions.

                                                   a.

       Brown        was     convicted          of        three         counts        of     unlawful

distribution of a controlled substance, oxycodone, corresponding

to   prescriptions          he    wrote    for          three    patients:         King     Dao,    on

October 23, 2009 (Count Two); Eric Honesty, on June 7, 2010

(Count Seven); and Michael Rogers on April 5, 2010 (Count Nine).

Brown concedes that the government proved the first two elements

of each of these offenses — that Brown distributed oxycodone,

and that he did so knowingly and intentionally to each of these

patients.       He contends, however, that the government failed to

prove     the       third     element          —        that     the     prescriptions            were

                                                   25
illegitimate or outside the course of professional practice.                              We

disagree.

     The    government      introduced         several    categories          of   evidence

supporting    the      third   element     of    conviction      on   each         of   these

charges.     First, as to each charged distribution, the government

introduced       evidence      that      Boccone      directed        the          treatment

prescribed.      In particular, with respect to Dao, on October 23,

2009, Boccone entered a treatment note stating:

     New regiment [sic] as follows: Opiate Tollerant [sic].
     Discontinue all medications.     60mg Oxsycontin [sic]
     for long acting releif [sic] from chronic intractable
     pain to be taken with 40mg Oxycontin to establish
     baseline releif [sic]. 40mg to be taken 3 hours after
     taking a 60mg.     1 10mg methadone to be taken at
     bedtime   to  affect  the   CYP1A4   Enzyme  decreasing
     metabolising of oxycontin to increase duration.     2ml
     liquid Oxicodone for immediate releif [sic] in AM when
     awakening.

(JA 2731).       Earlier in the same day, Boccone entered further

notes regarding Dao’s pain symptoms.                     (JA 3030).           At the same

time,    Brown    is    listed     as    medical      provider      in    the       medical

records, and Brown issued a prescription for 40 milligram and 60

milligram OxyContin pills that same day.                     (JA 3030-3033; 2671-

2675).

     With respect to Honesty, on June 7, 2010, Boccone entered a

treatment     note       stating        that     he      restored        an        OxyContin

prescription:

     Restored Oxycontin to 3 tablets every 4 hours while
     awake from 10:00AM until 10:00PM with one additional

                                          26
      at last dosage to total 13 tabs per day; Resored [sic]
      Roxicodone to 3 tabs q6 with one additional HS, Zanax
      at 1mg q12, cymbalta 60mg 1 tab q 12, changed
      neurontin to 600 q6.

(JA 2136).       That same day, Brown issued four prescriptions for

Honesty,     including     two     separate         80     milligram          oxycodone

prescriptions.     (JA 1974-1981).

      Finally, with respect to Rogers, in an entry in Rogers’s

medical records made by Boccone on February 12, 2009, Boccone

increased    Rogers’s     oxycodone     regimen       to    the   level       that    it

remained until Rogers’s death, on April 8, 2010.                             (JA 1715-

1717).        He   also   opined   in    a    treatment       note         that    Rogers

“[r]equires    physical     therapy,”        “has    developed         a    very     high

tolerance to opiates,” and has a spinal cord injury with “no

alternative   treatment.”        (JA    1781).      On    April   5,       2010,   Brown

issued prescriptions in the amount set by Boccone on February

12, 2009.    (JA 1700-1702, 1715).

      In light of the above, we reject Brown’s contention that

the record contains no evidence showing that Boccone directed

Brown to write any of the three charged prescriptions. While

Brown cites lack of testimony by the patients themselves as to

who   directed     the    prescriptions,       the        documentary        evidence,

combined    with   testimony     regarding          the    working         relationship

between Boccone and Brown, amply supports the inference that

Boccone directed the prescriptions.


                                        27
      Moreover,         we    reject        Brown’s      contention          that,    even     if

Boccone   directed           the   prescriptions,            the    government       failed    to

present      any        evidence        that          such     conduct           rendered     the

prescriptions illegitimate. The statute itself provides that it

is    illegal      for        a    non-licensed          individual           to     distribute

controlled      substances         —    or    to      direct       or    cause     distribution

thereof. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. In addition,

Dr. Hamill-Ruth opined that it is “[a]bsolutely not appropriate”

for   a   non-licensed             person        to    direct,           oversee,    or     guide

prescriptions for narcotic pain medications.                                (JA 530; see JA

3828).    Thus, the jury properly could infer that if Boccone

directed or caused the prescriptions to be issued, this itself

established, or was one factor supporting, the conclusion that

the prescriptions were illegitimate.                         See United States v. Orta-

Rosario, 469 Fed. Appx. 140, 144 (4th Cir. 2012) (in affirming

convictions        of    doctor        and    employee         of       online     prescription

service, noting factors relevant to guilt, including “permitting

non-medical     personnel          to    write        prescriptions         with     pre-signed

bland prescription forms”); United States v. Mahar, 801 F.2d

1477, 1487 (6th Cir. 1986) (“[T]hat patients were regularly sold

controlled      substances         .    .    .     selected         by    non-physician       lay

employees of the Clinic would further support a finding that

controlled substances were issued outside the usual course of

medical practice and for no legitimate medical purpose.”).

                                                 28
     Apart    from    evidence     of    Boccone’s      involvement       in    the

individual   prescriptions       underlying     the    distribution       charges,

the government also introduced evidence that Boccone influenced

the entire course of treatment of each patient, both in the way

he managed his office and in his interactions with individual

patients.    For example, Dao testified that at one point he was

arrested at Chantilly Specialists for prescription fraud, and he

was unable to take his prescription with him at the time of

arrest.      After    spending    78    days    in    jail,    he    returned    to

Chantilly Specialists to pick up his prescription, and he was

provided     his     prescription       without       seeing        any    medical

practitioner, in the presence of Boccone, Boccone’s wife, and

another individual.       (JA 391).          Honesty agreed with Brown and

Boccone to return 80 mg OxyContin pills to Boccone and Brown.

(JA 336-337). 3      And, as noted above, Boccone set the level of


     3
       Brown contends the evidence is insufficient to link him to
the agreement with Honesty, because in some of his testimony
Honesty   references   Brown   and   Boccone   together,  without
identifying specific activity by Brown.     He also contends this
agreement is irrelevant to the charged prescriptions.     Viewing
the testimony in this manner, however, neglects to draw
inferences in favor of the government and impermissibly invites
the court to weigh the evidence. Honesty’s testimony provides a
basis upon which to infer an unlawful agreement between Honesty,
Brown, and Boccone, which is one factor among several showing
that treatment of Honesty was outside the scope of medical
practice, and that Brown knew that the specific charged
prescription, as part of that course of treatment, was
illegitimate.



                                        29
medication for Rogers that lasted from 2009 to his death in

2010.    (JA 1715-1717).

      In addition to evidence of Boccone’s involvement in medical

decisions, the government introduced further evidence that the

entire course of treatment of patients Dao, Honesty, and Rogers,

was     illegitimate    and     outside     the    usual     course       of   medical

practice.     This evidence took the form of indicia or red flags

of diversion, addiction, and abuse, as highlighted in the report

and testimony of Dr. Hamill-Ruth.

      In particular, Dao received prescriptions for large volumes

of pain medication, continuing without change over an extended

period of time, without referrals for alternative treatment or

therapy     for      “underlying         medical    issues     that        are     very

concerning.”           (JA    549,       3833).      Diagnostic        tests       were

insufficient “to support the diagnosis of intractable pain,” and

provided “no good indication to be prescribing this man chronic

opiates as far as their documentation is concerned.” (JA 549).

Additional red flags included multiple early refills, multiple

calls, sporadic visits, and drug screens, all as indicia that

prescriptions are fueling a drug addiction.                        (JA 550-551). A

pharmacy    called     in    2010   to   report    early   refill     requests,     an

incident in which Dao was with another person who attempted to

pay with counterfeit money, and Dao’s provision of medication to

another    person.      (JA    2710,      3833).     On    March    23,    2011,    Dao

                                           30
pleaded      guilty    to    prescription          fraud     based    on     prescriptions

received from Chantilly Specialists. (JA 2659).                              Dao met with

Brown for two appointments after returning from jail following

his arrest for prescription fraud. (JA 389, 391, 2700-2705).                              As

noted above, Dao picked up prescriptions that had been filled on

the day of his arrest, without any medical examination. (JA 390-

391).     Dao received prescriptions despite having drug screens on

several occasions that were positive for use of cocaine and/or

negative for proscribed medications (JA 386, 3205, 3834).

       Honesty      testified       that     he    never     received        any    physical

examination        while    being     seen    at    Chantilly        Specialists.        (JA

330).        According      to   Dr.       Hamill-Ruth,         “there       was    no   good

indication       in   the     record       for      prescribing        him     significant

medication doses,” and “no outside documentation at the initial

visit.”       (JA     547).      Boccone          and   Brown    increased         Honesty’s

prescriptions over time, up to around 680 to 700 narcotic pain

pills per month.           (JA 335, 338).          Three times when he attempted

to   take    the    medications       as     written    in    his    prescriptions,       he

overdosed, and he informed Boccone and Brown of the overdoses.

(JA 338-339).         Further red flags included loss of medications;

lack of documentation of injuries and outside medical visits;

lack    of   documentation       of    prescriptions          from    other        providers;

escalating         aberrant      behavior          including        threats        prompting

referrals      to      psychiatry          for      “substance        abuse,        bipolar”

                                              31
disorders; lack of evidence of compliance with referrals; and

drug tests negative for prescribed medications.                        (JA 1990-1991,

2152, 3834-3836).        In sum, Dr. Hamill-Ruth opined “his behavior

really was very significant for abuse, and it was unconscionable

to continue to support his addiction problem without sending him

for appropriate referral.”            (JA 548).

      Indicia of addiction and abuse as to Rogers included that

he    drove    a    long       distance        from     Tennessee          to    receive

prescriptions,      he   was     treated       with    pain    medication       over    an

extended period from 2007 to his death in 2010, and additions

and   adjustments     were     made    without        any    rationale       noted.    (JA

3827).     Additional      red    flags    include          frequent    phone     calls,

requests      for   early       refills,        self-escalation            of    dosing,

inconsistencies     in     reporting      thefts,       issues      with     receipt    of

medication, and needing prescriptions overnighted to his home in

Tennessee, positive drug screens and an absence of documentation

as to pharmacies used.            (JA 3828-3829).             Further, Dr. Hamill-

Ruth opined that it was inappropriate and “flagrantly dangerous”

to prescribe Rogers the combinations of medications he received

without    adequate      documentation.          (JA        537).       As      for    the

prescriptions issued by Brown days before Rogers’s death, Dr.

Hamill-Ruth noted that prescriptions issued for “excessive doses

of multiple medications” raise “significant concerns” in light

of Rogers’s affliction with pneumonia.                 (JA 540-541).

                                          32
      Considering all of the above, including the evidence of

Boccone’s involvement, in conjunction with indicia of diversion,

addiction, and abuse, in the medical record of these patients,

the evidence was sufficient for the jury to conclude that Brown

knew or had reason to know that prescriptions he issued were for

an illegitimate purpose or were not within the scope of usual

medical practice.

      Brown       raises      several       additional       challenges       as    to     the

evidence supporting the distribution counts of conviction, which

we find unavailing.               First, following on his earlier argument

regarding        the      legal    standard,        Brown        suggests   that     expert

testimony by Dr. Hamill-Ruth was not sufficient to convict him

because it addressed only a physician’s standard of practice and

did   not     address        whether    his    own     treatment       fell    below      the

standard     of       a   nurse   practitioner.             As    discussed    above,      we

disagree that the standard of practice for a nurse practitioner

differs from that of a physician.                     Moreover, as to sufficiency

of her report and testimony, Dr. Hamill-Ruth did not limit her

opinion     to    the      standard    of    practice       for     physicians,     to    the

exclusion        of       other   licensed         practitioners       such    as        nurse

practitioners.            Indeed, she testified as to “the practice . . .

in the field of pain management,” and guidelines that “medical

providers who practice in the field of pain management can rely

on[.]”      (JA 526) (emphasis added).                She specifically noted that

                                              33
nurse practitioners, as well as physicians, are authorized to

prescribe       controlled          substances       in     Virginia.      (JA         530).

Accordingly, we reject Brown’s contention that Dr. Hamill-Ruth’s

testimony was insufficient to prove that Brown’s conduct fell

below the standard of medical practice.

       Brown     next        contends     that    his      treatment      of     patients

underlying      the     charged     offenses,       including    Dao,    was     in     good

faith because these patients had legitimate medical problems.

The existence of legitimate medical problems, however, does not

compel a finding that a practitioner prescribed medications in

good faith.       Indeed, in Singh, the court upheld convictions of a

physician      for    unlawful      distribution      of    controlled     substances,

even though patients to which medications were prescribed had

numerous       physical       ailments.       For    example,     one     patient       was

diagnosed with “lumbar disc problems and seizures.”                            Singh, 54

F.3d at 1188.         Based on the opinion of an expert witness, the

court noted that continued prescriptions of addictive drugs to

this    patient,        in     light    of   indicia       of   alcohol        abuse    and

recommendations         from    a   psychological         evaluation,   was      “outside

the scope of a legitimate medical practice.”                    Id.

       In this case, as in Singh, patients presented with medical

problems, including that Rogers had history of a gunshot wound,

(JA 3827), Dao suffered from “aching low back pain, intermittent

left L5 radiculitis and tension related neck pain,” (JA 3833),

                                             34
and Honesty had hypertension, sleep apnea, asthma, and carpel

tunnel syndrome. (JA 3834).              Nevertheless, the presence of such

legitimate medical problems in many respects supported, rather

than undermined, a determination that prescriptions were issued

outside the scope of medical practice.

     To     this    end,       Dr.    Hamill-Ruth          identified     a    disconnect

between the problems presented and the course of treatment.                              For

Rogers, she noted a lack of documentation regarding the nature

of   injuries,           and    she    noted        “significant        concerns”        with

prescribing medication to Rogers, in light of his pneumonia.

(JA 541, 3827).          For Dao, despite many ailments, Dr. Hamill-Ruth

noted that he was “not put on an NSAID, sent for PT, or offered

interventional pain management, any or all of which could have

helped     more     effectively        manage        his     pain.”           (JA    3833).

Similarly, for Honesty, “an inadequate exam is documented, and

it does not support chronic intractable pain,” and “no exam or

other data” is in the record to support some diagnoses. (JA

3834-35). Accordingly, the manner in which legitimate medical

problems    are     addressed,        rather        than    the    existence        of   the

problems    in     the    first      place,    is    most     probative       to    whether

prescriptions       are    issued      within       the    usual   scope      of    medical

practice.    (See JA 527).

     Finally, Brown argues that he acted in good faith because

supervising doctors and the Virginia Board of Medicine never

                                          35
stated his treatment of any patient was improper.                          As discussed

above, however, the level of supervision Brown received is one

factor among many bearing on the issue of whether Brown knew

that prescriptions were issued outside the scope of legitimate

medical     practice.       While       Brown       contends     that       supervising

physicians and the Board never criticized his treatment of any

patient, Brown also points to no evidence that they approved

specific prescriptions underlying the charged offenses.

     The practice agreement between Brown and Dr. Currier does

not set forth parameters of supervision or approval of specific

prescriptions,      nor    does        it    restrict     Brown’s          prescriptive

authority beyond specifying the types of drugs which Brown may

prescribe.      Rather,    it     is   a    form     check-box    agreement,      which

states     simply   that    Brown      is        “authorized     by    this    practice

agreement”    to    prescribe      multiple         categories        of   Schedule   II

drugs.     (JA 3763).      A jury reasonably could infer based on this

practice     agreement     that     Brown         maintained     responsibility       to

discern that a given prescription was legitimate or issued in

the course of medical practice. 4


     4
       Because of the limited nature of the agreement in this
case, we need not address whether conceivably a practice
agreement could include such restrictions on authority of a
nurse practitioner, and a physician could exercise such
oversight over individual prescriptions, to foreclose as a
matter of law culpability of a nurse practitioner. In this
manner, we find only theoretical significance in the fact that,
(Continued)
                                            36
       Moreover, Dr. Currier, who was supervising physician during

the time of the charged prescriptions, testified that she did

not authorize Brown to prescribe medications in the presence of

red flags such as inconsistent drug tests, lack of treatment

records, and noncompliant or aberrant behavior.                                (JA 308).      She

also    testified        that   she     was        not    sufficiently           present      and

informed of clinical information, nor sufficiently involved in

treatment decisions, to provide adequate oversight of individual

patient treatment. (See JA 264-265, 309).

        In    addressing        this     evidence             on     appeal,     Brown       draws

inferences in favor of the defense rather than the government.

For    example,     Brown       opines       that        “[g]iven         [their]      practice

agreement, the fact that Dr. Currier did not expressly authorize

Mr. Brown’s actions – which is all the transcript shows – was

tantamount to approval of Mr. Brown’s prescribing practices.”

(Brown Reply Br. at 6).            Similarly, Brown suggests that the jury

was    required     to     infer      from     Brown’s             lack   of    training      and

supervision       that     Brown      believed           in        good   faith       that    the

prescriptions      he     issued      were     legitimate.                But,    a    contrary



as Brown notes, Virginia law authorizes a practice agreement to
“restrict such prescriptive authority as deemed appropriate by
the physician providing direction and supervision.” (Brown Br.
at 33, quoting Va. Code Ann. § 54.1-2957.01(A)). It suffices in
this case that no such restrictions were embodied in Brown’s
practice agreement.



                                              37
inference is also reasonable. In particular, the jury reasonably

could infer that, in the absence of adequate supervision and

oversight from Dr. Currier, Brown chose to follow directions of

Boccone     in        making   the            charged        prescriptions,       including

prescribing a high volume of medications for as long as patients

were    willing       to   receive        them,        all     with   knowledge       of     or

deliberate blindness to the fact that the prescriptions were

without grounding in legitimate medical practice.

       In sum, substantial evidence supported Brown’s convictions

for distribution of controlled substances.

                                                b.

       Turning next to Boccone’s convictions for distribution of

controlled       substances,        we    conclude        that    the    evidence      amply

supported    the       conclusion        that        Boccone    knowingly      distributed

oxycodone        to     six    patients           by     entering       directions          for

prescriptions in each patient’s medical file on the dates of the

charged distribution.

       In   particular,        as        we     have    already       noted,    the        jury

reasonably       could     infer     that        Boccone        directed    the    charged

prescriptions for other patients Dao, Rogers, and Honesty.                                 In a

similar manner, the evidence demonstrated that Boccone directed

the prescriptions for patients Diane Gisin, Linda Mumma, and

Bryan Anderson (Counts Three, Four and Five).                           Specifically, on

April 16, 2009, Boccone entered direction in Gisin’s medical

                                                38
file     stating            “[m]aintain           current            regiment        [sic],”        and

physician’s assistant Joe Frazier signed prescriptions including

Roxicodone 30 mg and other opiate drugs.                                 (JA 2576, 2534).       In a

medical    record           entry    on     February          5,     2009,     Boccone       directed

maintenance of an opiate regimen and added prescriptions for

Mumma.     (JA 3581-3582).                Finally, in a medical record entry on

August    17,     2009,       Boccone          entered        a     detailed        treatment   note

including    diagnosis          for       Anderson,           and    directed        four    days   of

medication, including 80 milligram OxyContin pills.                                   (JA 3933).

       This evidence is sufficient to permit the jury to infer

that     Boccone        conducted              the        patient        visits       or     directed

prescriptions       for        each       patient          on      the     date     charged,    thus

causing,     as         a     non-licensed                individual,          distribution         of

controlled substances.                See 21 U.S.C. § 841(a)(1); 18 U.S.C. §

2; see also United States v. Johnson, 831 F.2d 124, 128 (6th

Cir.     1987)     (“[T]he           sale        by       a     nonpractitioner            of   bogus

prescriptions       which           are    in    fact         used       to   obtain       controlled

substances is tantamount to the distribution of the substances

themselves        and       hence,        is     properly           punishable        as    unlawful

distribution of drugs in violation of section 841(a)(1).”).

       Further,     although          additional              evidence        was    not    required,

Boccone’s convictions were also supported by evidence set forth

above demonstrating that treatment of patients Dao, Rogers, and

Honesty,     in    concert           with       Brown,        was     outside       the     scope   of

                                                     39
legitimate medical practice due to indicia of abuse, addiction,

and diversion.            In addition, with respect to Gisin, Dr. Hamill-

Ruth     opined          that     “[p]rescribing         for       this      patient         was

substandard,”        due    to    inadequate      documentation            and    evaluations

rendering         prescriptions      outside      the    bounds       of    usual      medical

care.       (JA 3838).          Mumma also testified that in one instance

Boccone attempted to treat her for very high blood pressure by

bringing in during an appointment a “blister pack of medication”

and directing her to take one. (JA 453). When she refused, he

called      her    cardiologist       and    introduced        himself       as    “Dr.     Paul

Boccone.” (JA 454).

       We    have     considered      Boccone’s         arguments      challenging          his

convictions         for     the      distribution        counts        and        find      them

unavailing. While Boccone focuses on the lack of evidence that

he   personally          signed    prescriptions         for    any    of        the   charged

patients, such arguments do not take into account that Boccone’s

culpability rests on his conduct in directing or causing the

charged prescriptions, which, on the basis set forth above, is

supported by substantial evidence.                   His suggestion that medical

providers,         and    not     Boccone,    entered        the   directions          in   the

medical notes as cited above, rests upon drawing inferences from

circumstantial evidence in favor of the defense rather than the

government.          Where       Boccone’s    name      is   designated          in    a   timed

medical entry in the record, the jury reasonably may infer that

                                             40
he conducted the medical visit, or participated in it, and then

entered the text of the entry. Further, Boccone’s contention

that other providers entered notes using his name is belied by

the fact that those same medical providers entered their own

notes in the medical record using their own names.              (See, e.g.,

JA 1715-1717).      Finally, Boccone’s contentions that treatment of

the patients in the charged offenses was in fact legitimate fail

for the same reasons we have rejected Brown’s challenges to the

convictions. 5

     In sum, we conclude the evidence was sufficient to support

Boccone’s unlawful distribution convictions.

                                     2.

     We turn next to appellants’ convictions for conspiracy to

distribute controlled substances.

     The drug conspiracy statute provides that “[a]ny person who

attempts   or    conspires   to   commit   any   offense   defined   in   this

     5
       The court is in receipt of a letter submitted by Boccone’s
counsel post-argument, pursuant to Federal Rule of Appellate
Procedure 28(j).    Under this subsection of the rule, titled
“Citation of Supplemental Authorities,” a party may submit such
a letter only “[i]f pertinent and significant authorities come
to a party’s attention after the party’s brief has been filed.”
Fed. R. App. P. 28(j). The submission here, however, does not
contain pertinent and significant authorities that came to
Boccone’s attention after his briefs were filed.      Rather, it
contains citations to the record in reference to points made at
oral argument. We are thus not obligated to consider this
letter.   In any event, the information provided in Boccone’s
letter does not alter the conclusions we reach above.



                                     41
subchapter         shall     be     subject     to     the    same      penalties          as      those

prescribed       for       the    offense,      the    commission            of    which      was     the

object of the attempt or conspiracy.”                                 21 U.S.C. § 846. To

convict      a     defendant        of    conspiracy         under          this    statute,          the

government       must       establish      three       essential            elements:           (1)    an

agreement to unlawfully distribute controlled substances existed

between      two      or     more     persons;        (2)     defendants            knew      of      the

conspiracy; and (3) defendants knowingly and voluntarily became

a part of this conspiracy.                See Burgos, 94 F.3d at 857.

       “[I]t     is    not       necessary      to     prove      a    formal       agreement         to

establish a conspiracy in violation of federal law; a tacit or

mutual understanding among or between the parties will suffice.”

McIver,      470    F.3d      at    563   (quotation          omitted).             In     addition,

“[t]he Government is not required to prove that a defendant knew

all    his       co-conspirators           or     all        of       the     details         of      the

conspiracy.”           United States v. Green, 599 F.3d 360, 367 (4th

Cir.    2010).         In    the      context         of     unlawful         distribution             of

prescription          drugs,       conspiracy        may     be   established            where        the

defendant “tacitly agreed with his patients to provide opioid

prescriptions without legitimate medical reasons for doing so.”

470 F.3d at 563.                  “The government can satisfy the knowledge

requirement by showing either that Appellant actually knew of

the    conspiracy,          or     that    he    was       willfully          blind      to     it    by



                                                42
purposely      closing       his   eyes       to    avoid   knowing    what       was   taking

place around him.”           Id. (internal quotations omitted).

       Much    of      the    same      evidence         supporting       the      individual

distribution convictions also supports the conspiracy conviction

in this case.           For example, the treatment of Dao, Rogers, and

Honesty, as detailed above, provides sufficient evidence of a

conspiracy      to     unlawfully        distribute         oxycodone,       in     light   of

Boccone’s      involvement         in   treatment        decisions,       in     conjunction

with    red    flags    showing        that    their     treatment     was      outside     the

scope    of     medical       practice.            In   addition,     the       government’s

evidence       demonstrated        a     conspiracy         extending       in     scope    to

treatment of other patients, such as Justin McConnell, whose

treatment      at    the     hands      of    Boccone       and   Brown     was     similarly

outside the scope of medical practice. From this evidence, a

jury reasonably could conclude that appellants agreed with each

other    and    their      patients      to    unlawfully         distribute       controlled

substances, and each knew of the conspiracy or was “purposefully

closing his eyes to avoid knowing what was taking place around

him.”    McIver, 470 F.3d at 563.

       Moreover, the government introduced further circumstantial

evidence that appellants entered into an agreement to distribute

prescriptions        outside       of     medical        practice.          Such     evidence

includes time limits placed on examinations by Boccone, scarcity

of physical exams, perfunctory visits for prescription refills

                                               43
for large amounts of drugs, Boccone’s presence in examination

rooms     during   patient    exams     conducted     by     Brown    and   other

practitioners, close interaction between Boccone and Brown in

the office, Boccone’s processing of prescriptions and forgery of

signatures on prescriptions, Boccone’s reference to himself as

“doctor,” Brown’s conduct in signing prescriptions filled out by

Boccone or prescriptions in stacks while in exams with other

patients,    and   patients’       provision    of   gifts   and     services   to

Boccone and Brown.          (JA 128-29, 132-136, 138-39, 142-43, 165,

176, 187-88, 223-25, 257, 365, 368, 412-13).

     In sum, considering together the treatment of individual

patients with evidence regarding the nature of the practice and

defendants’ role in the practice, sufficient evidence supported

the conspiracy convictions in this case.

                                       3.

     Boccone contends the evidence was insufficient to convict

him of health care fraud.            The government charged Boccone with

violation of 18 U.S.C. § 1347, on the basis that he submitted a

claim to Medicare on November 3, 2009, knowing that licensed

medical    provider   had    not    performed    services,    particularly      in

treatment of Dianne Gisin, on April 16, 2009.

     The health care fraud statute provides that it is unlawful

to “knowingly and willfully execute[] . . . a scheme or artifice

(1) to defraud any health care benefit program; or (2) to obtain

                                       44
by means of false or fraudulent pretenses, representations, or

promises,    any    of     the    money    .    .    .    [of]       any    health       benefit

program,    in    connection       with    the      delivery         of    or    payment      for

health care benefits, items, or services . . . .”                                    18 U.S.C. §

1347(a).    The statute may be violated by a person who obtains

reimbursement      from     Medicare      by    means      of    false          or    fraudulent

statements on insurance claims. See McLean, 715 F.3d at 140.

“[T]he   specific        intent    to   defraud          may    be    inferred         from   the

totality of the circumstances and need not be proven by direct

evidence.” Id. at 138.

     The    government       introduced         evidence        that       the       person   who

provided    medical       services      for     Gisin      on    April          16,    2009   was

Boccone, (JA 2576), whereas the provider billed to Medicare was

physician’s assistant Joe Frazier.                   (JA 3781-82).              Considered in

conjunction      with    Gisin’s     testimony           that    Boccone         treated      her,

this was sufficient for the jury to infer that solely Boccone

saw Gisin on that date and Frazier did not provide any medical

services.        Because    Boccone       caused      claims         to    be    submitted     to

Medicare    falsely        representing          the       provider         who        performed

services    on     the    date    charged,          Boccone’s         health         care   fraud

conviction is supported by substantial evidence.

     Boccone argues that Medicare allows submission of a bill

for a visit with a member of a medical provider’s staff, noting

for example that Medicare billing code 99211 provides for an

                                           45
office      visit     “not   requir[ing]           the    presence       of    a     physician,”

where       “[u]sually,      the      presenting          problem(s)           are    minimal.”

(Boccone      Br.    at    51-52).        Notably,        however,       the       billing   code

submitted to Medicare in this case was 99215, not 99211. (JA

3781).       In contrast to code 99211, code 99215 is reserved for

office visits requiring either a “comprehensive examination” or

“[m]edical decision making of a high complexity,” where “the

presenting      problem(s)          are       of    moderate        to     high      severity,”

typically      requiring       40     minutes        spent    face-to-face            with   the

patient.        See       American        Medical        Assoc.,     Current          Procedural

Terminology (CPT), 10 (2009 Standard Ed.).                               Here the evidence

suggests the opposite – that no legitimate medical decisions

were    made    on     April   16,     2009,        much     less    decisions          of   high

complexity       or       following       a    comprehensive             examination.        This

further supports a determination that the bill which Boccone

submitted in this case included false and misleading information

regarding the nature of the provider and the services performed.

       In     sum,     Boccone’s       health        care      fraud          conviction      was

supported by substantial evidence.




                                               46
                                        4.

     Boccone     argues   that    the        evidence   was   insufficient   to

support    his   convictions     for    failure    to   pay   over   employment

taxes. 6

     Under 26 U.S.C. § 7202,

     Any person required under this title to collect,
     account for, and pay over any tax imposed by this
     title who willfully fails to collect or truthfully
     account for and pay over such tax, shall, in addition
     to other penalties provided by law, be guilty of a
     felony and, upon conviction thereof, shall be fined
     not more than $10,000, or imprisoned not more than 5
     years,   or  both,   together  with   the  costs   of
     prosecution.

To secure a conviction under this statute for failure to pay

employment taxes, the government must prove that (1) defendant

has a duty to withhold and pay over employment taxes for the

employer, and (2) defendant willfully failed to perform one of

these tax-related duties.         See United States v. Lord, 404 Fed.


     6
       Boccone also argues that the government failed to charge
him within a three-year statute of limitations period. Boccone,
however, waived this argument by not raising it before or during
trial. See United States v. Williams, 684 F.2d 296, 300 (4th
Cir. 1982). Boccone counters that the government itself has
waived any reliance on waiver by addressing the merits of his
argument in opposition to Boccone’s post-trial motion for
acquittal. But, to the extent this court has recognized such a
“waiver of waiver” argument, it has been in instances of
government “acquiescence” to the issue being raised on appeal.
United States v. Metzger, 3 F.3d 756, 757-58 (4th Cir. 1993).
The government did not so acquiesce in this case, because it
raised Boccone’s waiver in opposition to the motion for
acquittal and raised it again on appeal.



                                        47
Appx. 773, 775 (4th Cir. 2010); United States v. Gilbert, 266

F.3d 1180, 1185 (9th Cir. 2001).

       Here,    the    government       introduced    substantial      evidence      to

satisfy   both    elements       of     the    offense.   Concerning       Boccone’s

duties, Boccone admitted to a government special agent that he

was    responsible       for     withholding       employment     taxes    from     his

employees and for paying over such withholdings to the Internal

Revenue Service. (JA 478).               He also had prior experience with

filing payroll tax forms and remitting employment taxes with his

former company, Berwyn Mortgage.                   (JA 3958-3968).        Concerning

Boccone’s failure to pay, Boccone admitted at trial that he was

aware of the obligation to pay employment taxes withheld, and

there was no dispute that Boccone failed to pay the taxes due.

(JA 623, 759).

       Boccone suggests, nonetheless, that his failure to pay was

not willful because there was no money available to pay them

when   due.      Contrary       to    Boccone’s    suggestion,     the    government

introduced      evidence       that   Chantilly     Specialists    had    sufficient

funds to satisfy the tax obligations or there would have been

sufficient      funds    had    other    expenditures     not   been     paid.      (JA

4006-4336).           “The intentional preference of other creditors

over the United States is sufficient to establish the element of

willfulness.”         Turpin v. United States, 970 F.2d 1344, 1347 (4th

Cir.    1992)    (internal        quotations       omitted).       Even    if     other

                                              48
expenditures were necessary for operation of the business, this

does not undermine a finding of willfulness.                            Indeed, “paying

wages    and    .   .   .     satisfying    debts      to       creditors   in   lieu   of

remitting employment taxes to the IRS, constitute circumstantial

evidence of a voluntary and deliberate violation of § 7202.”

Lord, 404 F. App’x at 779.

       In sum, the government introduced substantial evidence to

support the tax law convictions.

                                           C.

       Boccone argues that the prosecutor improperly commented on

his veracity during closing argument.                    Boccone did not object to

the    prosecutor’s         closing     argument    at      trial.      Accordingly     our

analysis is “confined to plain error review.”                           United States v.

Woods, 710 F.3d 195, 202 (4th Cir. 2013). “Under this standard,

[appellant] must show not only that the district court committed

an    error    that     was    plain,    but    also     that     the    error   affected

[appellant’s] substantial rights thereby impacting the outcome

of his trial.” Id. (internal quotations omitted).

       The prosecutor’s argument arose out of testimony by Boccone

at    trial    regarding       his    provision     of      a    handwriting     exemplar

during the investigation of the case.                    In relevant part, Boccone

testified as follows on re-direct examination:

       Q.   Did you go in voluntarily on your own to give
       [Special Agent Walker] handwriting exemplars?
       A. Yes, I did.

                                           49
       Q.   Have you gotten any results?
       A.   No.

(JA 659-60) (emphasis added).               During defense counsel’s closing

argument, counsel reminded the jury of this testimony, stating

as follows:

       Mr. Boccone took the stand.     Told you that he went
       voluntarily on his own to Special Agent Walker, and
       then for two to three hours give them handwriting
       samples.    Apparently they were thinking he forged
       prescriptions.   Now think about it. . . .   Who wakes
       up and walks off to the police station to give a
       handwriting sample if they know that they’ve been
       forging prescriptions?    He goes in there to give a
       handwriting sample.

(JA 781) (emphasis added).

       After    this      argument    concluded,       the    government     asked   to

correct the record in rebuttal to reflect that the handwriting

exemplar in fact “was done pursuant to a grand jury subpoena.”

(JA    792).        Counsel      for    Boccone        thereupon       requested     an

opportunity to clarify himself “in respect to the handwriting

exemplar,      it   was    pursuant    to     a    grand     jury   subpoena,”   which

request the court allowed. (Id.).                    At that point, counsel for

Boccone concluded his argument by stating to the jury: “[W]ith

respect to the handwriting exemplars, the grand jury issued a

subpoena for Mr. Boccone to give his handwriting exemplars, and

he went and gave the handwriting exemplars pursuant to the grand

jury   subpoena     to     Special    Agent       Walker.”      (JA   793)   (emphasis

added).


                                            50
      Subsequently,     upon      rebuttal,    the    prosecution     stated     as

follows to the jury:

      Ladies and gentlemen, we now know that Paul Boccone
      gave a handwriting exemplar pursuant to a grand jury
      subpoena when he told you during his sworn testimony
      that it was voluntarily. What else in Paul Boccone’s
      testimony under oath is false, ladies and gentlemen?

(JA 811).

      Boccone suggests that this argument was improper because

(1) Boccone in fact testified truthfully that he voluntarily

gave a handwriting exemplar, and (2) the prosecutor’s statement

constitutes an improper expression by the prosecutor as to the

veracity of a defense witness.

      With    respect   to   the    first     challenged     statement      by   the

prosecutor, there was no impropriety in reminding the jury that

Boccone gave the exemplar “pursuant to a grand jury subpoena”

whereas in his testimony he stated that “it was voluntarily.”

(JA   811).     This    is   consistent     with     the   correction    made    by

Boccone’s own counsel. (JA 793). It is also consistent with the

evidence.      In particular, Boccone gave the exemplar after the

investigating attorney informed Boccone’s counsel that the grand

jury had issued a subpoena for the defendant’s handwriting. (JA

938).   Boccone was in fact served with the subpoena.                   (JA 940).

While Boccone points out on appeal that the subpoena was not

served on Boccone until he arrived at the police station, it is

nonetheless     accurate     to    state    that     the   exemplar   was    given

                                       51
“pursuant to a grand jury subpoena.”                (JA 811).          Accordingly,

the first challenged statement in the prosecutor’s argument was

not improper.

     The    second        challenged    statement      in        the   prosecutor’s

argument,   by     contrast,    may    have   exceeded   the       bounds    of   fair

advocacy.    This court has “recognized that it is highly improper

for the government to refer to a defense witness as a liar.”

United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993); see,

e.g., Woods, 710 F.3d at 202 (prosecutor improperly stated that

defendant    “lied        . . . under     oath   when       he     testified      this

morning”). Although the prosecutor did not expressly call the

defendant      a     “liar,”     the     prosecutor’s        argument        clearly

communicated to the jury the prosecutor’s view that defendant

lied under oath.

     We    need     not    decide,    however,   whether         the   prosecutor’s

argument constituted error.            Even assuming that it did, and the

error was plain, we conclude the error did not affect Boccone’s

“substantial       rights.”     Id.     “When    the   evidence        of   guilt   is

overwhelming and a perfect trial would reach the same result, a

substantial right is not affected by a particular error. Id.

(internal quotations omitted).           In undertaking this analysis, we

have considered the following well-established factors:

     (1) the degree to which the prosecutor’s remarks have
     a tendency to mislead the jury and to prejudice the
     accused; (2) whether the remarks were isolated or

                                        52
        extensive; (3) absent the remarks, the strength of
        competent proof introduced to establish the guilt of
        the accused; and (4) whether the comments were
        deliberately   placed  before    the jury to  divert
        attention to extraneous matters.

Id.   (quotations omitted).

      Here,     accepting         that        the    challenged       argument      by   the

prosecution had a tendency to mislead the jury and prejudice

Boccone, the remarks nonetheless were made in conjunction with

an    express        correction      by       Boccone’s       own     counsel    regarding

Boccone’s testimony.           Thus, even if the prosecution had not made

the challenged argument, the jury had an independent basis to

question      whether       Boccone       had       been   fully      truthful      in   his

testimony.          In addition, while the remarks came at a prominent

point    at    the    culmination        of    the    closing       argument,    they    were

brief relative to the length of the argument as a whole.

      Further,        the    government’s           evidence    against       Boccone    was

overwhelming         and    was    supported          by   multiple         categories    of

evidence,       each        independently            supporting       the     convictions,

including medical records demonstrating Boccone’s involvement in

treatment of patients and the nature of the prescriptions he

directed,      testimony      from    patients,         and    testimony      and    records

regarding      Boccone’s       office         practices.            Even    assuming     that

Boccone       had     not    forged       prescriptions,            sufficient      evidence

demonstrated that Boccone conspired to and directed distribution

of controlled substances outside the bounds of medical practice.

                                               53
     Finally, in light of the correction by defense counsel,

there    is    no    indication    that   the    comments       were    deliberately

placed before the jury to divert attention from the evidence in

this case.

     In       sum,   although      part   of     the     challenged     prosecution

argument may have been improper, any error resulting therefrom

does not warrant reversal of Boccone’s conviction.

                                          D.

     Boccone and Brown challenge the district court’s sentencing

determination.        We   address    first      their     contention     that     the

district court failed to adequately explain the sentence given.

     “We review a sentence for abuse of discretion.”                            United

States v. Bell, 667 F.3d 431, 440 (4th Cir. 2011). As part of

this review, we must

     “ensur[e]  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, failing
     to consider the § 3553(a) factors, selecting a
     sentence based on clearly erroneous facts, or failing
     to adequately explain the chosen sentence—including an
     explanation for any deviation from the Guidelines
     range.”

United    States      v.   Lynn,   592    F.3d   572,     575    (4th    Cir.    2010)

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

     With respect to the explanation provided by the district

court, “[r]egardless of whether the district court imposes an

above, below, or within-Guidelines sentence, it must place on

                                          54
the record an individualized assessment based on the particular

facts of the case before it.” Bell, 667 F.3d at 442 (quotations

omitted).      “The    explanation    must   be    sufficient   to    allow    for

meaningful appellate review, such that the appellate court need

not guess at the district court’s rationale.”                   Id. (internal

quotations omitted).         This court previously has observed that

“[w]ithout     an    affirmative     showing      the   information    [in     the

presentence report] is inaccurate, the court is free to adopt

the findings of the [presentence report] without more specific

inquiry or explanation.”          United States v. Terry, 916 F.2d 157,

162 (4th Cir. 1990) (internal quotations omitted).

      In setting forth the reasons for the sentence in this case,

the district court stated as follows with respect to Boccone:

      All right.   Well, Mr. Boccone, I find the guideline
      factors in this case to be properly assessed at a
      range of 360 months to life.      That because of your
      financial condition, the imposition of any fine or
      cost is not warranted.    But considering your age and
      prior record and the nature of this offense, I find
      that a sentence somewhat below the guideline range
      would be appropriate. It will be the sentence of the
      Court that as to Counts, 1 to 5, 7, and 9, you be
      committed to the custody of the Attorney General to
      serve a term of 180 months . . . .

(JA   1124).        The   court   imposed    lesser     concurrent     terms   of

imprisonment for the remaining counts of conviction.                  For Brown,

the district court stated only:

      All right. Well, I find the guideline factors in this
      case to be properly assessed at a range of 188 to 235
      months.    I also find because of your financial

                                       55
      condition, Mr. Brown, that the imposition of any fine
      or cost is not warranted.      And in considering the
      factors under Section 3553, which I must, considering
      your – the facts of this case and the extent of your
      involvement, I find that a sentence below the low end
      of the guideline range would be appropriate. It will
      be the sentence of the Court, as to Counts, 1, 2, 7,
      and 9, you be committed to the custody of the Attorney
      General to serve a term of 60 months . . . .

(JA 1103-04).

      The       district   court’s   explanation       for   the    sentence     was

lacking in several respects.              In particular, the district court

failed     to    explain   adequately     the    application   of   each    of   the

statutory sentencing factors, and to provide “an ‘individualized

assessment’ based on the particular facts of the case before it”

of   the    basis    for   the   substantial      downward    variance     imposed.

Bell, 667 F.3d at 442.            The district court’s cursory reference

to statutory factors, with mention of “age and prior record and

the nature of this offense” for Boccone, and “the facts of this

case and the extent of . . . involvement” for Brown, (JA 1103,

1124), does not explain how these factors for each defendant

apply to warrant a downward variance, leaving us to “guess at

the district court’s rationale.”               Bell, 667 F.3d at 442.

      In     addition,      while    we    can     glean     from   the     court’s

explanation that the district court adopted in toto the findings

and conclusions in the presentence report, the district court’s

failure to explain why it did so is procedurally unreasonable.

The district court did not discuss the objections and arguments

                                          56
raised by appellants prior to and during the sentencing hearing,

including     their       specific     contentions       that        the    drug     quantity

calculations        and    corresponding           offense     level        determinations

contained     in    the     presentence        reports     were      not     correct,          and

Boccone’s objection to application of a sentencing enhancement.

(See JA 1057, 1096, 1117, 4434, 4384).

       This   court       has   not     previously       decided       how        much    “more

specific inquiry or explanation” is required, as suggested by

Terry, 916 F.2d at 162, when a district court adopts findings in

a     presentence     report         over     objections       and     arguments          by     a

defendant.         See United States v. Montes-Pineda, 445 F.3d 375,

380 (4th Cir. 2006) (“[A] district court’s explanation should

provide some indication . . . that the court considered . . .

the    potentially        meritorious        arguments    raised       by    both        parties

about    sentencing.”).         We    need     not    decide    this       question       here,

however. As set forth below, assuming the district court did not

sufficiently        explain      the        sentence    imposed,           this    error       is

harmless under the circumstances of this case.

       “[P]rocedural errors at sentencing are routinely subject to

harmlessness        review.”          Lynn,     592    F.3d     at     576        (quotations

omitted).     When the court commits a procedural error in failing

to explain a sentence given, the government may avoid reversal

if the error “did not have a substantial and injurious effect or

influence on the” result and the court can “say with . . . fair

                                              57
assurance that the district court’s explicit consideration of

[the defendant’s] arguments would not have affected the sentence

imposed.”   Id. at 585 (quotations and citations omitted).

     In applying this harmless error review, we find persuasive

the court’s treatment of a procedural error in United States v.

Cox, 460 Fed. App’x 248, 250 (4th Cir. 2012).          There, the court

reasoned:

     In this case, the district court erred by providing no
     explanation for the length of the active prison term
     it imposed upon Cox. We conclude, however, that the
     Government met its burden to show that this error was
     harmless. Because Cox received a substantial downward
     variance, we conclude the district court's inadequate
     explanation ‘did not have a substantial and injurious
     effect or influence on the result’ of the sentencing
     proceeding. Furthermore, Cox's arguments in support of
     a 120–month    sentence  were   without  legal   merit,
     allowing us to conclude with ‘fair assurance that the
     district court's explicit consideration of those
     arguments  would   not  have   affected  the   sentence
     imposed.’

Id. (quoting Lynn, 592 F.3d at 585).

     In   this   case,   as   in   Cox,   because   appellants   received

significant downward variances, the district court’s failure to

adequately explain application of the sentencing factors “did

not have a substantial and injurious effect or influence on the

result” of the sentencing proceeding.           Lynn, 592 F.3d at 585

(internal   quotations    omitted).       In   addition,   the   district

court’s failure to set forth reasons for adopting the guidelines

range set forth in the presentence report, including failure to


                                    58
address      appellants’     arguments    as    to   the    calculation    of   the

guidelines         range,   was   harmless     because     these   arguments    are

without merit, as we set forth below. As such, we may conclude

with       “fair    assurance     that   the     district     court’s     explicit

consideration of those arguments would not have affected the

sentence imposed.” Lynn, 592 F.3d at 585 (internal quotations

omitted). 7

           Accordingly, we turn next to address appellants’ arguments

as to the guidelines range calculation.

                                         1.

       Appellants first argue, as they did before the district

court, that the court incorrectly calculated the drug quantity




       7
       We find inapposite prior cases, including those cited by
appellants, in which the court has remanded for resentencing
despite the district court’s award of a downward variance.    In
those cases, unlike here, the court remanded after finding clear
error in the calculation of a guidelines range. See, e.g.,
United States v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012)
(remanding where district court failed to properly calculate
guidelines range);   United States v. Napan, 484 F. App’x 780,
781-82 (4th Cir. 2012) (remanding where the district court
misapplied an enhancement, despite award of downward variance).
Nor does this case involve a variance without explanation in the
direction opposite to that requested by the appellant. See,
e.g., Lynn, 592 F.3d at 582 (remanding where district court
provided “no explanation at all for a substantially above-
Guidelines sentence”); United States v. Engle, 592 F.3d 495, 503
(4th Cir. 2010) (remanding where the government appealed
downward variance imposed without sufficient explanation).




                                         59
used to determine their base offense level under the sentencing

guidelines.

       We review “the district court’s calculation of the quantity

of drugs attributable to a defendant for sentencing purposes for

clear error.”           United States v. Slade, 631 F.3d 185, 188 (4th

Cir. 2011). In other words, the court must be “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).

       “The     Government       must      prove    by       a    preponderance        of   the

evidence the amount of controlled substances attributable to a

defendant.”        United States v. Carter, 300 F.3d 415, 425 (4th

Cir. 2002). In calculating drug quantity, “a sentencing court

may give weight to any relevant information before it, including

uncorroborated          hearsay,       provided         that       the     information       has

sufficient      indicia     of       reliability        to       support      its    accuracy.”

United States v. Crawford, 734 F.3d 339, 342 (4th Cir. 2013)

(quoting United          States      v.    Wilkinson,        590    F.3d      259,    269   (4th

Cir.2010)).

       In   the    context      of    a    drug    conspiracy,            a   “defendant     is

responsible       not    only     for      his    own    acts,       but      also    for   ‘all

reasonably        foreseeable          acts’       of     his       co-conspirators           in

furtherance of the joint criminal activity.”                             Slade, 631 F.3d at

188.        A   defendant       is    “accountable           for     all      quantities     of

contraband        with    which       he    was     directly         involved         and   all

                                             60
reasonably foreseeable quantities of contraband that were within

the scope of the criminal activity that he jointly undertook.”

Bell, 667 F.3d at 441 (quoting U.S.S.G. § 1B1.3 cmt. n.2).

     According to the presentence report adopted by the district

court,     Brown     was   responsible        for    the    equivalent     of   12,453

kilograms      of    marijuana,   based       upon   100%    of    the    prescription

amount provided to patients Honesty, Dao, Rogers, and McConnell

after he commenced work at Chantilly Specialists in July, 2009.

(JA 4438).      Boccone was responsible for the equivalent of 18,155

kilograms of marijuana, representing the medications prescribed

to Honesty, Dao, and Rogers for the entirety of their care,

under    the    direction    of   Boccone.           Where    these      drug   weights

exceeded an equivalent of 10,000 kilograms of marijuana, both

Boccone and Brown were subjected to a base offense level of 36.

See U.S.S.G. § 2D1.1.

     The    evidence       presented     by    the    government      at    trial    was

sufficient      to    establish   that    Boccone      and    Brown      conspired     to

unlawfully distribute controlled substances to Honesty, Dao, and

Rogers, outside the bounds of medical practice and not for a

legitimate      medical     purpose    during        the    time   that    they      were

involved    with      treatment   of   these        patients.       Whether     or   not

Boccone or Brown individually saw these patients during each

visit to Chantilly Specialists is not dispositive of the drug

quantity calculation where they each knew, or reasonably should

                                          61
have known, that the entire course of treatment was beyond the

scope of legitimate medical practice. See McIver, 470 F.3d at

563.    The    illegitimacy        of   the    entire       course    of    treatment     is

supported not only by the report and testimony by Dr. Hamill-

Ruth, but also by Boccone’s role in directing the treatment as a

non-medical professional.

       In     addition,      although         McConnell’s        treatment         was   not

addressed      in    the   report       of    Dr.    Hamill-Ruth,      the     government

offered       sufficient      evidence        at     trial     that        Brown    treated

McConnell outside the scope of legitimate medical practice, in

disregarding many of the same indicia of abuse and diversion

present with Honesty, Dao, and Rogers. For example, McConnell

did not provide prior treatment records upon beginning treatment

at    Chantilly      (JA   184),    Brown      treated      McConnell       without      ever

having given him a physical exam (JA 189), and his prescriptions

increased significantly over time leading to an addiction. (JA

190, 193).          In addition, Brown made untoward physical contact

and    personal      calls    to    McConnell        that    impacted       the    treating

relationship.        (JA     192-93).          Boccone      also     was     involved     in

directing prescriptions.                (JA 197-98).         The presentence report

noted all these facts, in addition to others obtained based upon

an investigative interview report, regarding adjustments made by

Brown in prescriptions and Brown’s promise to keep prescribing

him 30 milligram oxycodone pills.                   (JA 4410).

                                              62
       In sum, the drug weight calculation by the district court

properly      was    supported      by   an      aggregation         of    quantities      of

controlled substances distributed to Honesty, Dao, Rogers, and

McConnell, where treatment of these patients was outside the

scope of legitimate medical practice.

       Appellants argue on appeal that the district court’s drug

calculations were erroneous because the court did not follow the

calculation methods set forth by the Fourth Circuit in Bell.

There,      defendants         pleaded      guilty        to        offenses     including

conspiracy to possess with intent to distribute oxycodone, which

they obtained through prescriptions while patients at a pain

management center.            Bell, 667 F.3d at 434 & 435.                      This court

held   that    the    district      court     did   not    adequately          explain    the

basis for the sentence, particularly drug quantity, where the

district      court         based   drug      quantity          on       the   amount      of

prescriptions received by each patient.                        Id. at 439-441.            The

court noted that, generally, “[w]here there is no evidence that

any    of   the     drugs    obtained    by      members       of    a    conspiracy     were

obtained      or     possessed      legally,        all    reasonably          foreseeable

quantities possessed . . . may be considered ‘relevant conduct’

attributable to that defendant.”                  Id. at 442.             But, in “a case

involving a valid prescription,” the court noted,

       if . . . the government wishes to use the total
       quantity prescribed to one or more conspiracy members
       as evidence of the quantity of ‘contraband ... within

                                            63
       the scope of the [conspiracy],’ it must also provide
       evidence, and the district court must make a finding,
       of something more — for example . . . that the
       conspiracy actually distributed a particular amount[,]
       [or] that the person who was prescribed the drug
       lawfully kept and consumed only a portion (or none) of
       the prescribed amount . . . . ”

Id.    at     443    (quoting         U.S.S.G.      §    1B1.3    cmt.    n.2).     Appellants

contend the district court erred by failing to make any such

findings in this case.                We disagree.

       Bell is inapposite for several reasons.                             First, in Bell,

“there      [was]        no     dispute     that    [defendant]       received      her     pills

using a valid prescription issued to her by physicians at a

single institution.”                   Id. at 444 (emphasis added).                    Just the

opposite       was       true    in   the    present      case,    where    the     government

introduced evidence demonstrating that the prescriptions issued

to     Dao,     Honesty,           Rogers,         and   McConnell        were     not      valid

prescriptions.                While    appellants        contend    that    these      patients

made    use    of        some    or   most    of    their    prescriptions        to     provide

relief      for      their        medical      conditions,         this    fact     does     not

transform an otherwise unlawful prescription issued outside the

scope of medical practice into a valid one.

       Second, the defendants in Bell pleaded guilty on the basis

that    they,       as     patients,        distributed      oxycodone      that     they     had

already received from a pain management center.                                  By contrast,

appellants here were convicted of issuing prescriptions outside

the    scope        of    medical      practice.            Whether      patients      in   Bell

                                                   64
actually     ingested     the    medication        could    be     determinative        to

whether they in fact distributed the medication to others. See

id. at 443. Here, by contrast, whether the patients actually

consumed     the    prescription        drugs   in    question       is       not   itself

determinative of whether the prescriptions were made outside the

scope of medical practice.               Indeed, evidence that the patients

in this case ingested excessive quantities of pain medication

over an extended time period was itself an indicia of addiction

further demonstrating illegitimacy of the prescriptions.

     Finally, unlike in Bell, the district court in this case

adopted the guidelines range in the presentence report that was

based on a detailed drug quantity calculation as set forth in

the presentence report.             In contrast, the district court in Bell

picked a round number below that calculated in the presentence

report, without offering any specific explanation for why that

number was chosen.            Id. at 444.          Accordingly, the presentence

report in Bell provided no basis, as it did in this case, for

the drug quantity calculation by the district court.

     Based on the foregoing, we reject appellants’ argument that

we   must    vacate     the     sentence     for     further      fact    finding      and

explanation        regarding      the      calculation       of      drug       quantity.

Although     the    district     court     erred     in    failing       to   adequately

explain     its    reasons    for    the   sentence       given,     this      error   was

harmless where we can determine based on the presentence report

                                           65
adopted     by   the   court    that       there    was    no    clear       error    in     the

calculation of drug quantity.

                                               2.

       Boccone     challenges        the       four-point       enhancement          under     §

3B1.1(a), for his role as a leader in the conspiracy.                             The court

“review[s] a district court’s decision to apply a sentencing

adjustment based on a defendant’s role in the offense for clear

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

2002).

       To qualify for a four-level increase under § 3B1.1(a) of

the    Sentencing      Guidelines,         a    defendant       must     have     been       “an

organizer or leader of a criminal activity that involved five or

more   participants      or    was     otherwise      extensive.”             §   3B1.1(a).

“Factors     the   court      should       consider   include          the    exercise       of

decision making authority, the nature of participation in the

commission of the offense, the recruitment of accomplices, the

claimed right to a larger share of the fruits of the crime, the

degree of participation in planning or organizing the offense,

the nature and scope of the illegal activity, and the degree of

control and authority exercised over others.”                           Id. Application

Note 4.

       In   applying    this    enhancement,          we    look       to    “whether        the

defendant’s role was that of an organizer or leader of people,

as opposed to that of a manager over the property, assets, or

                                               66
activities     of   a   criminal        organization.”        United      States    v.

Llamas, 599 F.3d 381, 390 (4th Cir. 2010) (internal quotations

omitted).      The enhancement “is appropriate where the evidence

demonstrates     that     the       defendant    controlled   the   activities      of

other participants or exercised management responsibility.”                        Id.

(internal quotations omitted).

     For example, in United States v. Ellis, 951 F.2d 580 (4th

Cir. 1991), the court examined application of the enhancement to

a scheme to corruptly secure the passage of legislation in West

Virginia.      Although        the    corrupt     scheme   involved      only   four

participants, the court upheld the application of the § 3B1.1(a)

enhancement      because        the     unknowing     services      of    lobbyists,

legislators, and their staffs advanced the criminal activity.

Ellis,   951    F.2d      at    585.       The    court    observed      that   “[i]n

considering     whether        an    activity    is   ‘otherwise    extensive,’      a

court may consider, as it did here, ‘all persons involved during

the course of the entire offense,’ even the ‘unknowing services

of many outsiders.’”           Id. (quoting § 3B1.1, cmt. n.2).

     In this case, the evidence at trial strongly supported a

determination that Boccone was both the organizer and the leader

of the charged conspiracy to distribute controlled substances.

Although the presentence report does not identify five or more




                                           67
participants in the conspiracy, 8 there is ample evidence that the

criminal activity was extensive.              As noted in the presentence

report:

     The   defendant   was   the  president  of   Chantilly
     Specialists and the owner from December 2005 until
     March 2010.   He ran Chantilly Specialists’ day-to-day
     operations, hired and directed employees, approved
     payments by the company, signed payroll checks, and
     made financial decisions on behalf of the company.
     Additionally, the evidence revealed Boccone, despite
     having no medical training or knowledge, saw patients
     and made decisions regarding the prescription of
     Schedule II controlled substances.

(JA 4362).       In addition, although many employees of Chantilly

Specialists      may   not   be    culpable    enough   to   be    considered

“participants” in the conspiracy, they were still involved as

unwitting providers of support to the conspiracy in allowing

prescription of medications to patients over an extended period

of time without a legitimate medical purpose and outside the

usual    scope   of    medical    practice.     Likewise,    the   number   of

patients involved, whether those patients were aware of their

abuse or unwittingly receiving illegitimate prescriptions, also


     8
        The presentence report identifies only three other
participants in the criminal conspiracy, Brown, Dr. Anthony
Fasano, and physician’s assistant Joe Frazier.      Although the
government suggests that patients such as Honesty and Dao also
were participants, the presentence report concludes that Boccone
did not direct or manage their activities.      In light of our
conclusion above that the criminal activity was “otherwise
extensive,” we need not address here whether the criminal
activity “involved five or more participants.” § 3B1.1(a).



                                      68
augmented the scope and significance of the illegal activity

under   leadership     of   Boccone.        Accordingly,   because    Boccone

exhibited authority and control over both office employees and

patients in furtherance of his criminal activity, the district

court correctly applied the four-level enhancement for Boccone’s

role as a leader in the conspiracy.

     In sum, where appellants have not raised any meritorious

arguments impacting the guidelines calculation, and where the

district court awarded a substantial downward departure from the

guidelines range, we find harmless the district court’s error in

failing to explain adequately the sentence given.

                                    III.

     Based   on      the    foregoing,      appellants’    convictions    and

sentences are

                                                                     AFFIRMED.




                                       69
