Professional Documents
Culture Documents
No. 10-4218
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (7:08-cr-00034-FL-1)
Submitted:
DIAZ,
Decided:
Circuit
Judges,
and
August 2, 2011
HAMILTON,
Senior
PER CURIAM:
Following a five-day jury trial, Perry Reese, III, was
convicted on two counts of dispensing a controlled substance in
violation of 21 U.S.C. 841(a)(1) and one count of conducting
the affairs of an enterprise through a pattern of racketeering
activity in violation of 18 U.S.C. 1962(c).
The district
challenges
several grounds.
his
convictions
that
the
sentence
on
and
racketeering
Alternatively, Reese
conviction
should
be
vacated
With
and
second
substantively
that
the
unreasonable.
sentence
For
the
was
procedurally
following
reasons,
and
we
affirm.
I.
A.
Reese first argues that the district court erred in
denying his motion for judgment of acquittal pursuant to Rule 29
of the Federal Rules of Criminal Procedure, contending that the
2
governments
unlawfully
evidence
dispensed
was
insufficient
controlled
to
prove
substances.
We
that
he
review
rational
trier
of
fact
could
have
found
the
In
reviewing
sufficiency
claim,
we
must
consider
by
21
U.S.C.
this
knowingly
841
subchapter,
or
provides
it
shall
intentionally
that
be
[e]xcept
unlawful
to
doctors
registered
by
the
Attorney
any
manufacture,
for
as
However,
General
are
substances,
so
long
3
as
they
comply
with
the
459 F.3d 463, 475 (4th Cir. 2006) (citing 21 U.S.C. 822(b)).
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
practice.
professional
the
government
was
required
to
prove
that
(1)
he
medical
purposes
in
the
usual
course
of
his
substances
outside
the
usual
course
of
his
argues
that,
at
most,
the
governments
evidence
was
medical
practice.).
Rather,
[o]ur
precedent
physicians
conduct
in
dispensing
controlled
substance
guilt
showing
by
that
physician
dispensed
controlled
omitted).
Accord
Singh,
54
F.3d
at
1187
([T]he
evidence must show that the defendants actions were not for
legitimate
medical
purposes
in
the
usual
course
of
his
Cuong,
[district]
18
court
F.3d
at
without
1138
a
(The
legitimate
standard
medical
used
by
purpose
the
does
But
see United States v. Rosenberg, 585 F.3d 355, 357 (7th Cir.
5
legitimate
purpose
and
must
be
dispensed
outside
the
1032,
1033
(5th
Cir.
1978)
(holding
that
to
convict
respect
to
Count
of
the
indictment,
the
with
the
North
Carolina
State
Bureau
of
Investigation
was
directly
selling
to
prescriptions
patients.
Reese
and
failed
controlled
to
perform
substances
any
basic
request
for
pain
medication
(prescribing
her
OxyContin during her first and third visits, and Percocet during
her
second
visit),
instructed
her
on
the
rules
in
case
each
visit,
Reese
falsified
Brewingtons
patient
examination
Elizabeth
Sanders,
the
governments
evidence
showed
that
cash
for
prescriptions
and
gave
him
rings,
watches,
generator, and other items that Reese told her he wanted from
the pawnshop where she worked, that Sanders met Reese at various
locations to purchase the prescriptions, which involved payment
of Sanderss insurance co-pay as well as additional cash fees,
and that Reese concealed some of the prescriptions he wrote to
Sanders by writing them in the names of her family members,
including Sanderss teenage daughter.
Beyond
these
specific
instances,
the
governments
some
cases
sold
them
drugs
directly.
Reese
also
wrote
that
Reese
told
him
7
to
chew
OxyContin
One patient
pills
for
quicker effect.
specialist,
opined
conduct
proper
issuing
patients
that
Reeses
examinations,
actions
diagnosis,
prescriptions
in
in
(1)
and
others
failing
follow-up,
names,
(3)
to
(2)
re-
for
prescription
without
seeing
the
patient,
(6)
prescribing
patients
up
to
20
pills
per
day,
and
(8)
B.
Reese next argues that the district court erred when
it declined to instruct the jury that, for purposes of Count III
alleging a violation of the Racketeer Influenced and Corrupt
8
Organizations
Act
(RICO),
the
enterprise
alleged
by
the
this case was Roseboro Urgent Care, P.A., out of which Reese ran
his medical practice and of which Reese was the sole proprietor
and the only physician.
to
give
or
refuse
discretion.
to
jury
instruction
for
abuse
of
Cir. 2009) (citing United States v. Moye, 454 F.3d 390, 397-98
(4th Cir. 2006)).
contends
that
the
district
court
abused
its
RICO
instruction:
The
enterprise
must
have
some
be
both
Reese
argues
the
that
RICO
defendant
the
government
and
the
must
RICO
prove
enterprise.
that
[t]he
not
contest
this
point,
but
argues
The government
that
distinction
legal
association,
entity
that
such
the
as
partnership,
enterprise
was
corporation,
engaged
in
or
interstate
law
and
did
not
err
by
omitting
the
proposed
C.
Reese next challenges his sentence, arguing that the
district
court
improperly
calculated
the
quantity
of
drugs
as
to
the
application
of
the
Guidelines
for
clear
error.
1989).
enough
and
quantity
that
of
legitimate
the
drugs
district
that
medical
court
should
have
Reese
argues
were
purposes--we
affirm
the
excluded
the
prescribed
district
for
courts
calculations.
Finally,
procedurally
Reese
and
argues
that
substantively
his
sentence
unreasonable.
was
We
both
review
(or
improperly
calculating)
the
Guidelines
range,
Next,
we
review
for
substantive
reasonableness,
sentence
it
chose
satisfied
the
standards
set
forth
in
3553(a).
of
substances
kilograms.
32
on
with
presentence
the
a
With
ground
total
six
report
that
Reese
marijuana
levels
of
suggested
base
distributed
equivalency
enhancements,
offense
controlled
exceeding
two
each
1000
for
pressed
for
downward
departure
from
the
Guidelines
this
imprisonment,
argument
the
and
effective
sentenced
Guidelines
Reese
to
sentence
240
based
months
on
the
argues
that
the
district
court
erred
of
the
defendant,
his
family
connections
and
ties,
his
J.A. 819.
We disagree.
basis
of
these
factors
except
in
extraordinary
12
circumstances.
factors--including
Reeses
military
service,
family
history,
Accordingly,
in
light
of
all
the
3553(a)
factors.
offenses.
According
to
Reese,
physicians
previously
provide
meaningful
guidepost
for
assessing
the
As the government
the
enhancements,
applicability
and
the
of
specific
13
certain
offender
departures
and
or
offense
Moreover, in enacting
U.S.S.G.
Ch. 1 Pt. A 3.
determination
Reeses
that
sentence
the
districts
courts
was
proportional
to
the
chosen
sentence
is
substantively
range.
Mendoza-Mendoza,
597
F.3d
at
217.
After
II.
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED
14