United States v. Gazelle Craig ( 2020 )

Case: 18-20671 Document: 00515514219 Page: 1 Date Filed: 08/04/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-20671
FILED
August 4, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
GAZELLE CRAIG, D.O.; SHANE FAITHFUL,
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CR-419-1
USDC No. 4:17-CR-419-2
Before BARKSDALE, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:*
Primarily at issue are Gazelle Craig’s and Shane Faithful’s challenges
to: the sufficiency of the evidence supporting their jury-trial convictions for
conspiring to unlawfully distribute controlled substances, in violation of 21
U.S.C. §§ 841(a)(1) and 846, and aiding and abetting the unlawful distribution
of controlled substances, or unlawfully distributing controlled substances
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 18-20671 Document: 00515514219 Page: 2 Date Filed: 08/04/2020
No. 18-20671
having been aided or abetted by others, in violation of 18 U.S.C. § 2 and 21
U.S.C. § 841(a)(1); and the district court’s excusing a juror, rather than
declaring a mistrial, after that juror had contact with a Government agent
during the evening following the seventh day of a nine-day retrial. Appellants
also claim additional trial and sentencing errors. Of the 11 issues appellants
raise, nine of them, including sufficiency-of-the-evidence challenges, are
reviewed only for plain error. The only two fully preserved issues are Craig’s
challenges to the procedural and substantive reasonableness of her sentence.
AFFIRMED IN PART; VACATED and REMANDED IN PART.
I.
Appellants began operating the Gulfton Community Health Center
(Gulfton) in Houston, Texas, as a pain-management clinic in 2015. Craig was
Gulfton’s medical director and sole treating physician; Faithful, its
administrator and owner of its management company. They split the clinic’s
profits.
As stated in Faithful’s opening brief on appeal:
The clinic’s “formulary”—the “certain group of drugs” Dr. Craig
consistently prescribed for treatment—consisted of “Norco,” a
mixture of the opioid hydrocodone and acetaminophen[,] . . . and
“Soma,” a brand of the drug carisoprodol marketed as a muscle
relaxant. Both hydrocodone ([S]chedule II) and carisoprodol
([S]chedule IV) are federally controlled substances, meaning the
only way to legally obtain them is through a prescription issued by
a practitioner registered with the Drug Enforcement Agency
(DEA).
The Texas State Medical Board began a formal investigation in
September 2015 of Craig’s practice at Gulfton based on allegations it was “an
illegal pain clinic”. As a result, the Board filed a complaint against Craig in
August 2016 alleging, inter alia, she failed to prescribe controlled substances
to patients in a manner consistent with public health and welfare.
2
Case: 18-20671 Document: 00515514219 Page: 3 Date Filed: 08/04/2020
No. 18-20671
In addition, the DEA investigated Gulfton for operating as a “pill mill”:
“a drug business exchanging controlled substances for cash under the guise of
a doctor’s office”. United States v. Oti, 872 F.3d 678, 685 (5th Cir. 2017).
The Government’s brief on appeal detailed Gulfton’s business model as
follows:
Facilitators[, defined infra,] recruited putative patients off the
streets, offering them cash—and sometimes breakfast and a
beer—to go to Gulfton, pay the clinic fee [averaging, according to
appellants’ presentence investigation reports (PSR), $300 per visit]
using the facilitator’s money, fill out intake forms, undergo a pro
forma medical exam, and obtain from Craig a prescription for a
drug combination known as the “Vegas cocktail.” That cocktail
consisted of hydrocodone, an opioid listed as a Schedule II
controlled substance because of its potential for abuse; and
carisoprodol, a muscle relaxant listed on Schedule IV that
increases the euphoric high of the opioid. Once patients had the
prescriptions, the facilitator took the patient to a pharmacy to have
the prescription filled, after which the patient would hand the
unopened bottles of pills to the facilitator in exchange for cash.
The facilitators, also known as “crew leaders”, were drug dealers who
accounted for at least 75 percent of the clinic’s business.
As part of this business model, Gulfton required advance cash payments;
it did not accept credit-card payments or insurance coverage. In that regard,
Faithful: determined the prescriptions’ prices; required patients, rather than
facilitators, pay for the prescriptions; and prohibited patients and facilitators
from exchanging money inside the clinic. Faithful also: prohibited from the
clinic cell phones, other electronic devices, and bags; and required physician
assistants to pat down patients to ensure they were not carrying an item that
could record Gulfton’s operations.
If a patient violated Gulfton’s policies, Craig denied that patient a
prescription or prescribed a lower number of pills. When that occurred,
facilitators could substitute another individual for the patient denied a
3
Case: 18-20671 Document: 00515514219 Page: 4 Date Filed: 08/04/2020
No. 18-20671
prescription or receive a Gulfton business card that served as a clinic credit.
Each credit, approved by Craig or Faithful, allowed a facilitator to bring
another patient to the clinic without paying in full for his prescription. To help
anticipate the number of patients to be seen each day, the clinic’s appointment
book detailed the names of the facilitators, and their expected number of
patients, arriving the following day.
According to DEA analysis of records kept by the Texas State Board of
Pharmacy, from 1 March 2015 to 15 June 2017 Craig issued 18,253
prescriptions for hydrocodone and 15,649 prescriptions for carisoprodol.
Moreover, those 33,902 prescriptions accounted for 98.6 percent of all
prescriptions she wrote during that time.
Gulfton’s last day of operations was 7 July 2017. The clinic saw 66
patients that day, to whom Dr. Craig prescribed 7,460 hydrocodone pills and
5,565 carisoprodol pills. Prescriptions for those 13,025 pills netted both
appellants single-day cash earnings of $5,720.
On 10 July, DEA and local agents executed a search warrant at the clinic
and search and arrest warrants at appellants’ residences, arresting both Craig
and Faithful. At Faithful’s residence, agents found, inter alia, an appointment
card given as clinic credit and over $141,000 cash in envelopes labeled “Shane”
and “Doc”. At Craig’s residence, agents found, inter alia, over $39,000 cash in
envelopes labeled “Doc” or “Dr. Craig”. At Gulfton, agents found, inter alia,
over $15,500 cash, also in labeled envelopes, and x-ray and magnetic resonance
imaging requests, presigned by Dr. Craig, designating chronic lower back pain
as a patient’s ailment but leaving blank the information about the patient,
including his name.
Both Craig and Faithful were indicted on four counts: conspiring to
unlawfully distribute and dispense controlled substances “not with a
legitimate medical purpose and outside the scope of professional practice”, in
4
Case: 18-20671 Document: 00515514219 Page: 5 Date Filed: 08/04/2020
No. 18-20671
violation of 21 U.S.C. §§ 841(a)(1) and 846 (count one); and aiding and abetting
the unlawful distribution and dispensation of controlled substances, or
unlawfully distributing and dispensing controlled substances having been
aided or abetted by others, “not for a legitimate medical purpose and outside
the scope of professional practice”, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§ 841(a) (counts two through four). The indictment also included a notice of
criminal forfeiture, pursuant to 21 U.S.C. § 853(a), allowing for the possibility
of the court’s entering a personal money judgment against each appellant.
A first trial began in January 2018. The court granted appellants’
motions for a mistrial after the jury failed to reach a unanimous verdict on any
count for either appellant.
The nine-day retrial occurred in March 2018. On the morning of the
eighth day of the retrial, a juror reported to the case manager that she had
contact with a Government agent the prior evening. After conducting an
inquiry, including receiving testimony from the agent and the juror and
receiving the parties’ positions regarding how to proceed, the court excused the
juror.
Following deliberations, the jury returned guilty verdicts on all four
counts for both Craig and Faithful. The court later sentenced both to, inter
alia, 420-months’ imprisonment. It also entered personal money judgments
against them, first against Faithful ($3,332,000) and then against Craig
($2,940,000).
II.
Both appellants primarily challenge: the sufficiency of the evidence
supporting their jury-trial convictions; and the court’s excusing a juror, rather
than declaring a mistrial, after that juror had contact with a Government
agent during the evening following the seventh of nine days of trial. These
5
Case: 18-20671 Document: 00515514219 Page: 6 Date Filed: 08/04/2020
No. 18-20671
were the only challenges presented at oral argument before our court, and both
fail.
Appellants also claim a number of additional trial and sentencing errors,
discussed infra. Other than Faithful’s challenge to the amount of his personal
money judgment, which the Government concedes was in error, these claims
also fail.
As noted, of the 11 issues before our court, appellants did not preserve
nine of them, including their sufficiency-of-the-evidence challenges, in district
court. Those nine issues, therefore, are reviewed only for plain error. (But,
even if the nine issues reviewed for plain error were reviewed under their
usual, less-demanding standards of review, the result would be the same.)
A.
Craig and Faithful both challenge the sufficiency of the evidence. As
stated, each challenge fails.
1.
For those challenges, Craig and Faithful both assert: the statutory
definitions of “dispense” and “distribute” under the Controlled Substances Act
(CSA), 21 U.S.C. § 801 et seq., are mutually exclusive, meaning a doctor cannot
“distribute” a controlled substance through a prescription; the Government
elected for trial to narrow all four counts to unlawful distribution, removing
the dispensation theory of liability from the jury’s consideration; and, as a
result, the Government’s presenting evidence—according to appellants—only
as to dispensation of, and a conspiracy to dispense, controlled substances was
insufficient to support their convictions.
Although Craig and Faithful each present a sufficiency challenge in their
opening briefs on appeal, Craig’s reply brief “adopts the briefing set out on th[e]
[sufficiency] issue in the Reply Brief filed . . . by [Faithful]”, pursuant to
Federal Rule of Appellate Procedure 28(i) (“In a case involving more than one
6
Case: 18-20671 Document: 00515514219 Page: 7 Date Filed: 08/04/2020
No. 18-20671
appellant or appellee, including consolidated cases, any number of appellants
or appellees may join in a brief, and any party may adopt by reference a part
of another’s brief. Parties may also join in reply briefs.”). For obvious reasons,
our court, however, “has held that an appellant may not adopt by reference
fact-specific challenges to his conviction”, including “challenges to the
sufficiency of the evidence”. United States v. Morgan, 117 F.3d 849, 853 (5th
Cir. 1997) (citations omitted). But, because Craig fully articulates her
sufficiency challenge in her opening brief, we need not address further her
arguably improper adoption of the sufficiency issue as briefed in Faithful’s
reply.
a.
Preserved sufficiency challenges are reviewed de novo. Oti, 872 F.3d at
686 (citation omitted). Such review “is highly deferential to the verdict” and
“consider[s] the evidence in the light most favorable to the [G]overnment, with
all reasonable inferences and credibility determinations made in [its] favor”.
Id. (internal quotation marks and citations omitted). In that regard, “[t]he
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt”. Id. (emphasis in
original) (citation omitted). Moreover, “it [is] within the sole province of the
jury as the fact finder to decide the credibility of the witnesses and to choose
among reasonable constructions of evidence”; accordingly, “[w]e will not second
guess the jury in its choice of which witnesses to believe”. E.g., United States
v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994) (citations omitted).
At the close of the Government’s case-in-chief, both appellants moved for
judgment of acquittal based on insufficient evidence, pursuant to Federal Rule
of Criminal Procedure 29(a) (permitting judgment-of-acquittal motions after
close of Government evidence and close of all evidence). In doing so, Faithful
7
Case: 18-20671 Document: 00515514219 Page: 8 Date Filed: 08/04/2020
No. 18-20671
asserted the Government failed to prove a conspiracy; Craig similarly asserted
such failure and also contended the Government “ha[d] not met [its] burden”
regarding the substantive counts. The motions were denied.
Craig then presented evidence, including by electing to testify. Faithful
introduced a set of text messages into evidence but did not call any witnesses.
“To preserve de novo review [of a Rule 29(a) motion for judgment of
acquittal], however, a defendant must specify at trial the particular basis on
which acquittal is sought so that the Government and district court are
provided notice.” United States v. McDowell, 498 F.3d 308, 312–13 (5th Cir.
2007) (citations omitted). Moreover, “[w]hen the defendant moves for
judgment of acquittal at the close of the [G]overnment’s case in chief, and
defense evidence is thereafter presented but the defendant fails to renew the
motion at the conclusion of all the evidence, he waives objection to the denial
of his earlier motion”. United States v. McIntosh, 280 F.3d 479, 483 (5th Cir.
2002) (citations omitted).
Importantly, appellants’ Rule 29(a) motions did not identify the following
basis for acquittal they now assert on appeal: the Government asked the jury
to return a verdict only as to distribution but its evidence related only to
dispensation. See McDowell, 498 F.3d at 312–13 (citations omitted). Moreover,
appellants (as they concede) did not renew their Rule 29(a) motions after the
close of all evidence. Accordingly, they forfeited any objection to the denial of
their prior motions. See McIntosh, 280 F.3d at 483 (citations omitted).
Instead, appellants jointly moved post-verdict for a new trial, pursuant
to Rule 33(a) (permitting defendant motions for new trial), which the court
denied. They claim on appeal this joint Rule 33 motion for a new trial, filed
after the jury rendered its verdict and was discharged by the court, preserved
their sufficiency challenges by satisfying Rule 29(c) (permitting judgment-of-
acquittal motions after a jury verdict or jury discharge and stating “defendant
8
Case: 18-20671 Document: 00515514219 Page: 9 Date Filed: 08/04/2020
No. 18-20671
is not required to move for a judgment of acquittal before the court submits the
case to the jury as a prerequisite for making such a motion after jury
discharge”). We need not decide whether a proper Rule 29(c) motion could have
preserved appellants’ sufficiency challenges, however, because appellants’
threshold contention that their Rule 33 new-trial motion serves as a Rule 29(c)
judgment-of-acquittal motion in this instance lacks merit.
In support of this contention, appellants cite, inter alia: their Rule 33
motion, which states “the Government failed to prove each and every element
of the” charged offenses; United States v. Bell, 623 F.2d 1132, 1134 n.2 (5th
Cir. 1980); and United States v. Mann, 557 F.2d 1211, 1216 n.6 (5th Cir. 1977).
In Bell, “[a]ppellant filed a motion for a new trial, listing among the grounds
therefor the court’s failure to grant his earlier motions for judgment of
acquittal”, and our court noted that, “[b]y so doing, appellant preserved his
objection to the court’s prior rulings”. Bell, 623 F.2d at 1134 n.2 (citation
omitted). And, according to Mann, “nothing in Rule 29(c) or in our decisions
prohibits a motion for acquittal, capable of preserving the sufficiency question
for appeal, from being embodied in a motion for a new trial”. Mann, 557 F.2d
at 1216 n.6.
As stated, however, appellants’ contention is unavailing. First, the
language they cite from their Rule 33 motion is from the motion’s first
sentence, describing their prior Rule 29(a) motions, and does not otherwise
articulate a basis for their Rule 33 motion: “Co-Defendants urged a Joint Rule
29 Motion for Judgment of Acquittal . . . based on the fact that the Government
failed to prove each and every element of the [charged offenses] beyond a
reasonable doubt. . . . [N]ow Co-Defendants file this Rule 33 Motion for New
Trial”. (Emphasis added.)
Second, appellants’ Rule 33 motion never listed the court’s denying their
Rule 29(a) motions as a ground for their Rule 33 motion. See Bell, 623 F.2d at
9
 Case: 18-20671 Document: 00515514219 Page: 10 Date Filed: 08/04/2020
No. 18-20671
1134 n.2 (citation omitted). The Rule 33 motion does state: “[t]he weight of
the evidence in this case is clearly against the verdict as the Government failed
to prove each element of every count beyond a reasonable doubt”; and
appellants “specifically incorporate the same insufficiency of the evidence
arguments made in their Rule 29 Motion”. These statements, however, are in
the context of appellants’ distinguishing Rule 33 from Rule 29 by, inter alia:
asserting “[o]ne basis for granting a new trial under Rule 33 is that the jury’s
verdict was based upon insufficient evidence”; and urging the court to grant a
new trial under Rule 33’s “much broader standard of review” than that for Rule
29.
Finally, appellants’ Rule 33 motion for a new trial does not otherwise
“embod[y]” a Rule 29(c) motion for a judgment of acquittal. See Mann, 557 F.2d
at 1216 n.6. The motion is styled as a Rule 33 motion and, as referenced in
part, goes to great lengths to distinguish a Rule 29 motion. In that regard, the
motion states, inter alia: Rule 33 motions “involve[] a much broader standard
of review” than Rule 29 motions; “[i]t is significant that a Rule 29 motion for
judgment of acquittal and Rule 33 motion for a new trial based on the weight
of the evidence are governed by very different standards”; “in contrast to Rule
29[—]under which a trial court must view the evidence in [the] fashion most
favorable to the Government[—]Rule 33 places no such restriction”; and “[e]ven
if . . . a judgment of acquittal is not appropriate in this case, [the court] may
still grant a new trial based on the fact . . . that the Government failed to prove
an essential element of [the] crime charged beyond a reasonable doubt”.
Consequently, because appellants did not preserve their sufficiency
challenges in district court, those challenges are reviewed only for plain error.
E.g., United States v. Huntsberry, 956 F.3d 270, 282 (5th Cir. 2020) (citation
omitted). Under the plain-error standard, appellants must show a forfeited
plain error (clear or obvious error, rather than one subject to reasonable
10
Case: 18-20671 Document: 00515514219 Page: 11 Date Filed: 08/04/2020
No. 18-20671
dispute) that affected their substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009) (citations omitted). If they make that showing, the court
has the discretion to correct such reversible plain error but generally should
do so only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings”. Id. (citation omitted).
“In the sufficiency of the evidence context, [our] court . . . reverse[s] under
plain[-]error review only if there is a ‘manifest miscarriage of justice,’ which
occurs only where ‘the record is devoid of evidence pointing to guilt’ or the
evidence is so tenuous that a conviction is ‘shocking.’” Oti, 872 F.3d at 686
(quoting United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en banc)).
Appellants have not shown the requisite “manifest miscarriage of justice”. See
id. (citation omitted). (Nor, as noted, would appellants’ sufficiency challenges
succeed even if properly preserved and reviewed de novo.)
b.
The CSA states “it shall be unlawful for any person knowingly or
intentionally . . . (1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled substance”. 21
U.S.C. § 841(a)(1). In that regard, “‘dispense’ means to deliver a controlled
substance to an ultimate user or research subject by, or pursuant to the lawful
order of, a practitioner, including the prescribing and administering of a
controlled substance”. Id. § 802(10). On the other hand, “‘distribute’ means to
deliver (other than by administering or dispensing) a controlled substance or a
listed chemical”. Id. § 802(11).
As stated, appellants assert: these definitions of dispense and distribute
are mutually exclusive; and, consequently, they could not be convicted of
distributing, and conspiring to distribute, controlled substances through
Craig’s prescriptions, which fall under the definition of dispense. For support,
appellants rely primarily on United States v. Leigh, 487 F.2d 206 (5th Cir.
11
Case: 18-20671 Document: 00515514219 Page: 12 Date Filed: 08/04/2020
No. 18-20671
1973), which they contend was reaffirmed by United States v. Armstrong, 550
F.3d 382 (5th Cir. 2008), overruled on other grounds, United States v. Balleza,
613 F.3d 432, 433 n.1 (5th Cir. 2010) (per curiam).
Appellants are correct that the Government voluntarily asked that the
jury return verdicts only for distributing, and conspiracy to distribute,
controlled substances despite dispensing, and conspiracy to dispense,
controlled substances being alternatives in the indictment. In that regard, and
as detailed in Faithful’s opening brief on appeal:
In the morning on the sixth day of [the first] trial, the
[G]overnment filed its proposed jury [instructions]. As to each
count, the [G]overnment limited the charged actus reus to
“distributing,” eliminating the dispensing alternative from the
indictment. The [G]overnment proffered special verdict forms
narrowed in the same way. The defense did not object to the
limitations, and the district court accepted and incorporated them
into the final charge and verdict forms submitted to the jury.
The court used those same, narrowed jury instructions and verdict forms at
the retrial. Although the Government contends the jury instructions do not
limit our evaluation of the sufficiency of the evidence, we need not reach that
contention because we conclude that Leigh and Armstrong do not mandate the
outcome appellants seek.
In Leigh, our court held “a doctor can be indicted, tried, and convicted for
the unlawful dispensing of a controlled substance, if his prescription is not for
a legitimate medical purpose in the usual course of his professional practice”.
Leigh, 487 F.2d at 207 (citation omitted). The court then affirmed dismissal of
a doctor’s indictment charging unlawful distribution for “fail[ing] to charge an
offense within the terms of the applicable statutes”. Id. at 207–08.
12
 Case: 18-20671 Document: 00515514219 Page: 13 Date Filed: 08/04/2020
No. 18-20671
Thereafter, in Armstrong, our court referenced Leigh’s conclusion,
noting:
The logical reading of the statutory definitions of “dispense” and
“distribute” that led this [c]ourt in [Leigh] to determine a doctor
writing illegal prescriptions must be charged with dispensing
rather than distributing[] counsels that a non-registrant who does
not write prescriptions but otherwise acts to provide drugs would
not properly be charged with dispensing rather than distributing.
Armstrong, 550 F.3d at 393 (citation omitted). The Armstrong decision further
stated Leigh’s holding was reaffirmed by United States v. Harrison, 628 F.2d
929 (5th Cir. Unit B 1980) (Harrison I), reh’g granted, 651 F.2d 353 (5th Cir.
Unit B July 1981). Id. (All cases from Unit B, which became the eleventh
circuit on 1 October 1981, are precedent in our circuit. E.g., United States v.
Rojas-Martinez, 968 F.2d 415, 420 n.11 (5th Cir. 1992).) The Harrison I
decision, in dismissing an indictment, stated: “Precedent in this circuit
establishes that, under Title 21 of the Code, a doctor who administers or
prescribes a controlled substance in an unlawful manner is to be indicted for
dispensing it rather than distributing it. U. S. v. Leigh”. Harrison I, 628 F.2d
at 930 (italics added) (citation omitted).
Critically, however, and unreferenced by the Armstrong opinion, the
Harrison I panel revisited its conclusion upon petition for rehearing (Harrison
II), where it instead distinguished Leigh, noting that the indictment in Leigh
charged only that a doctor “did knowingly and intentionally distribute . . . a
controlled substance in violation of [§] 841(a)(1)”. Harrison II, 651 F.2d at 354
(citation omitted). It then held the indictment at issue in Harrison
distinguishable from that in Leigh because the one in Harrison “charged
distribution that was [both] ‘unlawful’ and ‘for other than a legitimate medical
purpose and not in the usual course of medical practice’”, thereby “stat[ing] an
13
Case: 18-20671 Document: 00515514219 Page: 14 Date Filed: 08/04/2020
No. 18-20671
offense” under 21 U.S.C. § 841(a)(1) (criminalizing, inter alia, distribution or
dispensation of controlled substance). Id. (emphasis added).
Later cases in our court support this distinction and have upheld doctors’
convictions “for distributing a controlled substance under 21 U.S.C. § 841”
when the Government proves: “(1) that [the doctor] distributed or dispensed a
controlled substance, (2) that [the doctor] acted knowingly and intentionally,
and (3) that [the doctor] did so other than for a legitimate medical purpose and
in the usual course of [the doctor’s] professional practice”. E.g., United States
v. Evans, 892 F.3d 692, 703 (5th Cir. 2018) (emphasis added) (internal
quotation marks and citation omitted); Oti, 872 F.3d at 687 n.3 (citations
omitted) (“Because [appellants] are all medical professionals and generally
authorized to prescribe controlled substances, the [G]overnment also had to
prove beyond a reasonable doubt that the distribution was other than in the
course of professional practice and for a legitimate medical purpose.” (citation
omitted)); see also United States v. Bennett, 874 F.3d 236, 241, 244 (5th Cir.
2017) (registered nurse); United States v. Brown, 553 F.3d 768, 773, 780–81
(5th Cir. 2008) (citation omitted) (pharmacists); United States v. Norris, 780
F.2d 1207, 1208–09 (5th Cir. 1986) (citation omitted) (doctor). Notably,
“[a]lthough the [above-stated] third element is not expressly required by
§ 841”, it follows from “pertinent regulations provid[ing] that a controlled
substance can be dispensed by a prescription ‘issued for a legitimate medical
purpose by an individual practitioner acting in the usual course of his
professional practice’”. Norris, 780 F.2d at 1209 (quoting 21 C.F.R.
§ 1306.04(a) (1985)). Similarly, the present iteration of § 1306.04(a) states: a
controlled-substance prescription is “effective” only if “issued for a legitimate
medical purpose by an individual practitioner acting in the usual course of his
professional practice”; and “a [purported] prescription issued not in the usual
14
Case: 18-20671 Document: 00515514219 Page: 15 Date Filed: 08/04/2020
No. 18-20671
course of professional treatment or in legitimate and authorized research is not
a prescription”. 21 C.F.R. § 1306.04(a) (2005).
Armstrong did not disrupt this distinction. First, and as stated, it
referenced only Harrison I and not Harrison II. See Armstrong, 550 F.3d at
393. Second, it involved an individual, who was “not a physician registered
under the CSA”, indicted on 26 substantive counts of “illegally dispens[ing]
controlled substances outside the scope of professional practice”, and aiding
and abetting that conduct, pursuant to 18 U.S.C. § 2 and 21 U.S.C. § 841(a).
Id. at 392–93 (emphasis added). Therefore, although the court did “reject the
Government’s assertion that [appellant] may be convicted as a principal under
§ 841”, based on the relevant statutory definitions and because Leigh’s
“determin[ing] a doctor writing illegal prescriptions must be charged with
dispensing rather than distributing[] counsel[ed] that a non-registrant who
does not write prescriptions but otherwise acts to provide drugs would not
properly be charged with dispensing rather than distributing”, it did so under
distinguishable factual circumstances and when answering a different
question than that controlled by Harrison II. See id. (citation omitted).
Finally, Armstrong itself made clear that, in affirming the jury instructions
used by the district court, “a practitioner is unauthorized to dispense a
controlled substance if the prescription either lacks a legitimate medical
purpose or is outside the usual course of professional practice”. Id. at 397
(citing, inter alia, 21 C.F.R. § 1306.04). “In other words, knowingly distributing
prescriptions outside the course of professional practice is a sufficient condition
to convict a defendant under the criminal statutes relating to controlled
substances.” Id.
The indictment charged Craig and Faithful with a conspiracy “to
knowingly, intentionally, and unlawfully distribute and dispense . . . controlled
substances . . . not with a legitimate medical purpose and outside the scope of
15
Case: 18-20671 Document: 00515514219 Page: 16 Date Filed: 08/04/2020
No. 18-20671
professional practice”. (Emphasis added.) Moreover, the indictment identified
“the purpose and object of the conspiracy” as, inter alia, “prescribing controlled
substances without a legitimate medical purpose and outside the scope of
professional practice”. (Emphasis added.) Similarly, the indictment charged
appellants with three substantive counts of “unlawfully distribut[ing] and
dispens[ing], not for a legitimate medical purpose and outside the scope of
professional practice, . . . controlled substances”. (Emphasis added.)
The jury instructions, as narrowed by the Government, provided that, to
convict on count one (conspiracy), the jury “must be convinced that the
[G]overnment has proven . . . beyond a reasonable doubt”, inter alia, “[t]hat
two or more persons, directly or indirectly, reached an agreement to unlawfully
distribute a controlled substance not for a legitimate medical purpose or not in
the usual course of professional practice”. (Emphasis added.) And, on counts
two through four, the jury was similarly instructed it “must be convinced that
the [G]overnment has proved . . . beyond a reasonable doubt”, inter alia, “[t]hat
the defendant distributed a controlled substance . . . other than for a legitimate
medical purpose or in the usual course of professional practice”. (Emphasis
added.)
Consequently, distribution (and conspiracy to distribute) was not an
improper charge here, because the evidence demonstrated, as alleged by the
Government, that Craig’s prescriptions were issued outside the usual course of
professional practice and not for a legitimate medical purpose. Craig and
Faithful, therefore, have not shown the requisite plain (clear or obvious) error
regarding the sufficiency of the evidence proffered to obtain their convictions,
and their sufficiency challenges fail.
16
Case: 18-20671 Document: 00515514219 Page: 17 Date Filed: 08/04/2020
No. 18-20671
B.
A number of trial errors are also claimed, including appellants’ primary
contention that the court erred by excusing a juror, rather than declaring a
mistrial, after that juror had contact with a Government agent during the
evening following the seventh day of the nine-day retrial. Again, each
challenge fails.
1.
As for the court’s excusing a juror, it informed the parties on the day
closing arguments were to begin that a juror had reported having an encounter
the prior evening with a Government agent attending trial (a DEA agent who
had participated in surveillance of Gulfton and was observing the trial; he was
not a witness). In summarizing what had been reported, the court stated, inter
alia: the agent entered the same elevator as the juror; “tried to engage in just
some sort of chitchat”; and “kind of followed the juror out of the courthouse”.
The court then took testimony from both the agent and the juror.
The agent testified, inter alia, he: knew the woman was on the jury; was
in the elevator with her; made a comment to her while they were in the elevator
about how long the day had been; and ended up walking out of the courthouse
around 20 feet behind her after retrieving his firearm before leaving the
building. The juror, noting she had been the last juror to leave the courthouse
after stopping to use the restroom, testified, inter alia: she knew the man was
a Government agent; the encounter made her “uncomfortable”; she did not tell
any of the other jurors about what happened; and she knew the incident would
not affect or influence her.
Faithful moved for a mistrial, which the Government opposed. Craig,
however, explicitly elected not to move for a mistrial. The court denied
Faithful’s motion but excused the juror, basing its decision “upon the
statements of the Government and both defense counsel, specifically, the
17
Case: 18-20671 Document: 00515514219 Page: 18 Date Filed: 08/04/2020
No. 18-20671
concerns raised by [Faithful’s lawyer] as to this one juror”. (That court’s
practice is to keep 14 jurors until the case is submitted to the jury, when two
names are drawn at random to serve as alternates. Dismissing the juror before
the case was submitted to the jury left the court with 13 jurors, from which one
would be randomly chosen as the alternate.) Both appellants challenge the
court’s decision not to declare a mistrial, even though Craig expressly declined
to so move at trial.
Faithful contends: the court erred because, after it found there was
improper outside influence on the juror, the proper remedy, pursuant to
Remmer v. United States, 350 U.S. 377 (1956), was to declare a mistrial rather
than excuse the juror; and the juror’s excusal prejudiced Faithful because the
excused juror was one of only two black persons among the 14 potential jurors,
thereby “materially alter[ing] the racial composition of the jurors available to
ultimately decide the case”. (Both Craig and Faithful are black.)
Craig contends: the proper remedy for an improper-outside-influence
finding, pursuant to Remmer, was declaring a mistrial; the court should have
determined a racially-based strike occurred, in violation of Batson v. Kentucky,
476 U.S. 79 (1986), due to the agent’s conduct; the juror’s race-based exclusion
violated the juror’s equal-protection right to jury service; and the juror’s
excusal prejudiced Craig by possibly altering the composition of the selected
12-member jury.
a.
“We review only for abuse of discretion a [preserved objection to a] court’s
handling of complaints of outside influence on the jury.” United States v.
Smith, 354 F.3d 390, 394 (5th Cir. 2003) (citation omitted). “In granting a
broad discretion to the trial judge, we acknowledge and underscore the obvious,
that the trial judge is in the best position to evaluate accurately the potential
impact of the complained-of outside influence.” Id. (citation omitted).
18
 Case: 18-20671 Document: 00515514219 Page: 19 Date Filed: 08/04/2020
No. 18-20671
Moreover, “[o]ur precedents allow the trial judge the flexibility, within broadly
defined parameters, to handle such situations in the least disruptive manner
possible”. United States v. Ramos, 71 F.3d 1150, 1153 (5th Cir. 1995). Again,
however, an unpreserved challenge is reviewed only for plain error. E.g.,
Delgado, 672 F.3d at 328–30.
As noted in part, Craig (as she concedes) explicitly declined to move for
a mistrial in district court by stating, after Faithful moved for a mistrial and
the court asked whether Craig also so moved: “My position is Defendant Craig
does not move for a mistrial”. But, in contending before our court that her
challenges were preserved, Craig claims: Faithful’s passing reference to
Batson at trial was sufficient to preserve the issue for appeal; and, in any event,
Faithful’s motion for a mistrial preserved her contentions because the court
had previously granted her 21 December 2017 motion “to incorporate and
adopt each and every motion filed by all co-defendants . . . during the course of
the prosecution of this cause”.
That said, even assuming Craig could rely on Faithful’s mistrial motion
to preserve her contentions on appeal based on a months-prior court order, and
notwithstanding having explicitly disclaimed any intention to so move during
the retrial, Faithful’s mistrial motion stated only:
Given the fact that this juror is of American -- is an African-
American juror, okay, and the fact that there are only two on this
panel, okay, it -- I look at it as being a possible attempt to -- to alter
the jury panel or intimidate people where she won’t be there[.] . . .
[B]eing there are 14 jurors here who are in play and there
are only two African-Americans, if she’s intimidated enough to the
point where she’s off, then it imbalances the effect of how the jury
-- what the actual jury would actually hear in this particular case,
Judge; and that’s my particular concern. And because of that, I’d
move for a mistrial.
19
Case: 18-20671 Document: 00515514219 Page: 20 Date Filed: 08/04/2020
No. 18-20671
Consequently, only Faithful’s assertion the juror’s excusal materially changed
the jury’s composition (and Craig’s similar assertion on appeal, to the extent
she could rely on Faithful’s mistrial motion) was preserved for appeal. In any
event, and as stated supra, all of appellants’ contentions on this issue fail
whether reviewed for plain error or abuse of discretion.
b.
This is because the court did not make a finding of improper outside
influence. Rather, as noted, it stated: “Based upon the statements of the
Government and both defense counsel, specifically, the concerns raised by
[Faithful’s lawyer] as to this one juror, this one juror is excused”. This
statement does not show the court made any specific finding. Instead, it
reflects: the court’s stated “concern” at trial regarding “one of the [d]efendants
moving for a mistrial and the other one not moving for a mistrial”; and its
utilizing its broad discretion to consider the circumstances, and the three
parties’ positions, before making an informed decision on how to proceed.
And, even if the court had made an improper-outside-influence finding,
Remmer would not have required a mistrial. Remmer involved a juror who:
was bribed at his home during trial; stated he “ha[d] been under a terrific
pressure”; and became “a disturbed and troubled man from the date of the . . .
contact until after the trial”. Remmer, 350 U.S. at 378, 380–81. The juror still,
however, “sat on the jury for the remainder of the long trial and . . . cast [a]
ballot”. Id. at 381–82. The Supreme Court held, under these circumstances, a
new trial was warranted “on a consideration of all the evidence”. Id. at 382.
Remmer is, therefore, distinguishable on its facts: it involved a
completed trial and a heavily affected juror, see id. at 381–82, whereas the
incident at hand occurred before closing arguments and the juror at issue
stated it would not influence her. Moreover, the Court in Remmer considered
“all the evidence” rather than automatically requiring a mistrial, see id. at 382,
20
 Case: 18-20671 Document: 00515514219 Page: 21 Date Filed: 08/04/2020
No. 18-20671
and the court here similarly evaluated the circumstances before making a
decision within its discretion.
Additionally, Batson is inapposite. It held, in a case involving “the
prosecutor’s removal of all black persons on the venire”, that “the Equal
Protection Clause forbids the prosecutor [from] challeng[ing] potential jurors
solely on account of their race or on the assumption that black jurors as a group
will be unable impartially to consider the [Government’s] case against a black
defendant”. Batson, 476 U.S. at 89, 100 (emphasis added). It does not apply
where, as here, the court sua sponte invokes its discretion to excuse a juror
during trial based on possible outside influence. Moreover, even if Batson
applied, there is no evidence the juror was excused by the court—or, as Craig
asserts, was targeted for excusal by the DEA agent—“solely on account of [her]
race or on the assumption that [she would] be unable impartially to consider
the [Government’s] case”. See id. at 89. (This is true even assuming, as Craig
contends, the trial’s jury-selection phase was ongoing until the 12-member jury
was selected upon the case’s submission to the jury.)
Finally, it is true a potential juror’s equal-protection right is violated
when excluded from jury-service based on her race. Georgia v. McCollum, 505
U.S. 42, 48–49 (1992) (citations omitted). But, as stated, nothing in the record
even suggests the court excused the juror, or that the DEA agent targeted the
juror for excusal, due to her race. Rather, as the Government’s brief on appeal
noted, the record reflects the court excused the juror “because she experienced
and reported an outside contact that other jurors did not”. And, in the light of
the court’s impartial method of reducing the pool of 14 jurors to 12 upon the
case’s submission to the jury, it goes without saying that the selected 12-
member jury might have been the same even if the juror had never been
excused.
21
Case: 18-20671 Document: 00515514219 Page: 22 Date Filed: 08/04/2020
No. 18-20671
2.
Faithful contends “the prosecutor repeatedly assumed and vigorously
argued facts not established by the evidence during . . . closing argument”,
including by stating Craig and Faithful were responsible for, and knew about,
millions of opioids ending up on Houston’s streets. According to Faithful, these
remarks warrant reversal of his convictions because: they “were highly
prejudicial”; their “impact was not dampened by a specific limiting
instruction”; and the evidence of Faithful’s guilt “was not overwhelming”.
Again, this contention fails.
a.
“Counsel is accorded wide latitude during closing argument.” United
States v. Reagan, 725 F.3d 471, 492 (5th Cir. 2013) (citation omitted). In that
regard, “[r]eversal based on improper argument by the prosecutor is not called
for when there has not been a strong showing of a deleterious effect upon the
right to a fair trial”. Id. (alteration in original) (citation omitted).
“In reviewing claims of improper prosecutorial arguments, we first
analyze whether the prosecutor’s remark was legally improper.” United States
v. Phea, 755 F.3d 255, 266–67 (5th Cir. 2014) (alteration, internal quotation
marks, and citation omitted). “In closing argument, a prosecutor is limited to
discussing properly admitted evidence and any reasonable inferences or
conclusions that can be drawn from that evidence . . . [and] is not permitted to
make an appeal to passion or prejudice calculated to inflame the jury.” Id. at
267 (alterations in original) (internal quotation marks and citation omitted).
But, importantly, “a prosecutor may appeal to the jury to act as the conscience
of the community[,] so long as the comments are not calculated to inflame”.
United States v. Duffaut, 314 F.3d 203, 211 (5th Cir. 2002) (alteration in
original) (internal quotation marks and citation omitted).
22
Case: 18-20671 Document: 00515514219 Page: 23 Date Filed: 08/04/2020
No. 18-20671
A prosecutor’s legally “[i]mproper argument warrants reversal when[,]
taken as a whole in the context of the entire case, [it] prejudicially affect[ed]
substantial rights of the defendant”. Phea, 755 F.3d at 267 (first alteration
added) (internal quotation marks and citation omitted). “To make that
determination, we assess (1) the magnitude of the statement’s prejudice,
(2) the effect of any cautionary instructions given, and (3) the strength of the
evidence of the defendant’s guilt.” Id. (citation omitted).
Faithful (as he concedes) did not object to the prosecutor’s remarks in
district court, however. Therefore, review is again only for plain error, e.g.,
Delgado, 672 F.3d at 328–30, and he has not shown the requisite clear or
obvious error. (And, as noted, Faithful’s challenge would fail even if reviewed
under a less-demanding standard of review.)
b.
Like the comments in Duffaut, “regarding drug distribution affecting
‘family after family’ and ‘person after person’”, the challenged comments here
“were relatively benign”. See Duffaut, 314 F.3d at 211. This is particularly
true because, “[w]hen analyzing the impropriety of prosecutorial comments,
the central issue . . . is whether the prosecutor’s remarks cast serious doubt on
the correctness of the jury’s verdict”, which is “a high bar”. Reagan, 725 F.3d
at 492 (internal quotation marks and citation omitted). No such doubt was
cast on the verdict in this instance, as Faithful’s “dislik[ing] the facts that the
Government chose to highlight, or the inferential gloss that the Government
chose to put on those facts, cannot be a ground for reversal, in [the] light of
attorneys’ ‘wide latitude’ in crafting their closing arguments”. Id. at 493
(citation omitted).
Further, even if the prosecutor’s comments were considered legally
improper, the “court can purge the taint of a prosecutor’s prejudicial comments
with a cautionary instruction, even, in some cases, one that is merely generic”.
23
Case: 18-20671 Document: 00515514219 Page: 24 Date Filed: 08/04/2020
No. 18-20671
Id. (internal quotation marks and citation omitted). Along that line, in
instructing the jury in this instance, the court made clear the jury “must
consider only the evidence presented during the trial”, and “[t]he questions,
statements, objections, and arguments made by the lawyers are not evidence”.
3.
Faithful also invokes the cumulative-error doctrine to assert his
convictions should be reversed based on “the cumulative prejudicial impact of
the [G]overnment’s misconduct”, even if his juror-excusal and improper-
comments contentions fail individually. Again, because Faithful did not object
on this basis in district court, our review is only for plain error. E.g., Delgado,
672 F.3d at 328–30. In any event, the cumulative-error doctrine is inapposite.
“The cumulative error doctrine provides that an aggregation of non-
reversible errors (i.e., plain errors failing to necessitate reversal and harmless
errors) can yield a denial of the constitutional right to a fair trial, which calls
for reversal.” United States v. Eghobor, 812 F.3d 352, 361 (5th Cir. 2015)
(italics added) (internal quotation marks and citation omitted). “The doctrine
justifies reversal only in the unusual case in which synergistic or repetitive
error violates the defendant’s constitutional right to a fair trial.” Id. (citation
omitted). “In applying th[e] doctrine, a court must determine whether the
errors so fatally infect[ed] the trial that they violated the trial’s fundamental
fairness.” United States v. Ebron, 683 F.3d 105, 130 (5th Cir. 2012) (internal
quotation marks and citation omitted).
Obviously, the doctrine is inapplicable where, as here, there are no errors
to aggregate. See Eghobor, 812 F.3d at 361 (“The cumulative error doctrine
does not apply here because the district court did not err and, as such, there
are no errors that we could aggregate to find cumulative error.”); Ebron, 683
F.3d at 130 (“In this case, the cumulative error doctrine does not apply for one
simple reason: there is nothing to cumulate.”).
24
Case: 18-20671 Document: 00515514219 Page: 25 Date Filed: 08/04/2020
No. 18-20671
4.
Craig claims error in the Government’s stating, during its closing
argument, that she “broke the law” by “[p]racticing below the standard of care”.
According to Craig, this contravened the principle, from United States v.
Christo, 614 F.2d 486, 492 (5th Cir. 1980), that violation of a civil regulation
cannot be used to lower the required standard of proof for showing criminal
intent. She asserts this is particularly true here because the court had
previously sustained her objection, and instructed the jury to disregard specific
testimony, regarding the Texas Medical Board’s complaint.
In that regard, Craig moved during trial for a mistrial because the
Government “published to the jury evidence that the jury should not have seen
in the form of the [Texas Medical Board’s] complaint”. The district court denied
her motion. She never similarly objected, however, that she was convicted
under a civil-law standard of proof, which is her contention on appeal. Our
review of this issue, therefore, is again only for plain error, e.g., Delgado, 672
F.3d at 328–30, and the requisite clear or obvious error is lacking. (Again,
Craig’s contention would fail even if preserved in district court.)
At issue is a portion of the Government’s closing argument:
Dr. Craig, of course, was allowed to write the prescriptions
as a medical doctor; but she broke the law because her
prescriptions were not for a legitimate medical purpose. And they
were outside the scope of professional practice. She broke the law
because her prescriptions were given to drug dealers to sell on the
street. There is no legitimate medical purpose for that.
She broke the law when she wrote prescriptions without
evaluating patients with a disregard for patients’ medical history
and with a disregard for patients’ needs and the risks. She broke
the law when she wrote the same prescriptions for the same drugs
in the same amount day after day after day for two and a half
years. Dr. Craig broke the law when she wrote the same
prescription for Norco and Soma to everyone. Practicing below the
standard of care.
25
Case: 18-20671 Document: 00515514219 Page: 26 Date Filed: 08/04/2020
No. 18-20671
(Emphasis added.)
As discussed supra, to prove Craig violated the CSA, the Government
was required to show beyond a reasonable doubt that she, inter alia,
“knowingly and intentionally acted outside the course of professional practice
and without a legitimate medical purpose”. E.g., United States v. Chube II,
538 F.3d 693, 697 (7th Cir. 2008) (internal quotation marks omitted). And, as
the seventh circuit has noted, “it is impossible sensibly to discuss the question
whether a physician was acting outside the usual course of professional
practice and without a legitimate medical purpose without mentioning the
usual standard of care”. Id. at 698.
Moreover, the circumstances at hand do not implicate Christo. “In
[Christo], the defendant was charged with criminal misapplication of bank
funds, but the indictment and trial evidence focused upon violations of a civil
regulatory banking statute that concerned extending credit to bank officers.”
Brown, 553 F.3d at 791. The defendant asserted “an indictment may not
charge nor the [G]overnment prove violations of a civil regulatory statute as
the sole basis for alleged criminal misapplications of bank funds”. Id. (citing
Christo, 614 F.2d at 489). “This court agreed, finding that bootstrapping a
criminal violation to a civil violation was plain error requiring reversal.” Id.
By contrast, in this instance,
the [G]overnment “both charged and proved a violation of the
appropriate criminal statutes, not merely the related
regulations[,]” and thus drew a proper contrast between the
“irreproachable, commonplace use of duly issued regulations in
clarifying the scope and contour of criminal laws [and] the
inappropriate replacement of criminal laws with civil regulations.”
Bennett, 874 F.3d at 245 (third alteration in original) (quoting Brown, 553 F.3d
at 791 & n.71).
26
Case: 18-20671 Document: 00515514219 Page: 27 Date Filed: 08/04/2020
No. 18-20671
That Craig’s above-described objection to the testimony regarding the
Texas Medical Board’s complaint was sustained does not alter this analysis
because the court immediately instructed the jury “to disregard any testimony,
evidence, and excerpts relating to the last brief line of questioning about the
Texas Medical Board allegations”. We, of course, presume the jury followed
this instruction. See, e.g., Richardson v. Marsh, 481 U.S. 200, 211 (1987)
(noting juries presumed to follow instructions); see also United States v.
Limones, 8 F.3d 1004, 1008 (5th Cir. 1993) (citation omitted) (concluding
immediate jury instruction to disregard evidence sufficient to affirm mistrial
motion’s denial).
C.
Appellants also raise a number of sentencing challenges. As stated,
other than Faithful’s challenge to the amount of his personal money judgment,
these challenges also fail.
1.
For Craig’s challenge to her sentence’s procedural and substantive
reasonableness, her advisory Sentencing Guidelines sentencing range was
960-months’ imprisonment. She was, however, sentenced to, inter alia, 420-
months’ imprisonment.
Regarding procedural reasonableness, she asserts the court erred by
relying on Guideline § 2D1.1(c)’s (Drug Quantity Table) Commentary
Application Note 8(D) (Drug Conversion Tables), which equates one gram of
hydrocodone to 6,700 grams of marihuana. According to Craig, this is a
fictional equivalency for which the Sentencing Commission provided “no logical
or explainable” rationale. As for substantive reasonableness, Craig contends:
the court’s using the Drug Conversion Tables resulted in her receiving a
“grossly unfair” sentence; and we should exercise discretion to remand her
27
Case: 18-20671 Document: 00515514219 Page: 28 Date Filed: 08/04/2020
No. 18-20671
sentence for the court to make “defendant-specific” determinations based on
her background and characteristics.
a.
Although post-Booker the Guidelines are advisory only, the district court
must avoid significant procedural error, such as improperly calculating the
Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 (2007).
If no such procedural error exists, a properly preserved objection to an ultimate
sentence is reviewed for substantive reasonableness under an abuse-of-
discretion standard. Id. at 51; see also, e.g., United States v. Delgado-Martinez,
564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in
district court, its application of the Guidelines is reviewed de novo; its factual
findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008) (citation omitted).
Regarding Craig’s procedural and substantive error claims, she moved
in district court for a downward variance and objected to the procedural and
substantive reasonableness of her sentence. Her challenges were, therefore,
preserved.
b.
That said, Craig’s sentence is neither procedurally nor substantively
unreasonable.
i.
As for procedural reasonableness, Amendment 793 to the Guidelines
Manual, which revised the Drug Conversion Tables to include the challenged
hydrocodone-to-marihuana equivalency, explained in detail the Sentencing
Commission’s equating one gram of hydrocodone to 6,700 grams of marihuana.
See Supp. to Guidelines App. C, Am. 793 (pp. 105–07). It explained, inter alia:
In setting the marihuana equivalency, the Commission
considered: potency of the drug, medical use of the drug, and
28
Case: 18-20671 Document: 00515514219 Page: 29 Date Filed: 08/04/2020
No. 18-20671
patterns of abuse and trafficking, such as prevalence of abuse,
consequences of issue including death or serious bodily injury from
use, and incidence of violence associated with its trafficking. . . .
Scientific literature, public comment, and testimony supported the
conclusion that the potency, medical use, and patterns of abuse
and trafficking of hydrocodone are very similar to oxycodone. In
particular, the Commission heard testimony from abuse liability
specialists and reviewed scientific literature indicating that, in
studies conducted under standards established by the Food and
Drug Administration for determining the abuse liability of a
particular drug, the potencies of hydrocodone and oxycodone when
abused are virtually identical, even though some physicians who
prescribe the two drugs in a clinical setting might not prescribe
them in equal doses. Public comment indicated that both
hydrocodone and oxycodone are among the top ten drugs most
frequently encountered by law enforcement and that their
methods of diversion and rates of diversion per kilogram of
available drug are similar. Public comment and review of the
scientific literature also indicated that the users of the two drugs
share similar characteristics, and that some users may use them
interchangeably, a situation which may become more common as
the more powerful pharmaceuticals recently approved by the Food
and Drug Administration become available.
Based on proportionality considerations and the
Commission’s assessment that, for purposes of the drug guideline,
hydrocodone and oxycodone should be treated equivalently, the
amendment adopts a marihuana equivalency for hydrocodone
(actual) that is the same as the existing equivalency for oxycodone
(actual): 1 gram equals 6,700 grams of marihuana.
Id. at 107. And, it goes without saying the court did not err in relying on the
Drug Conversion Tables in determining Craig’s sentence. See, e.g., United
States v. Koss, 812 F.3d 460, 463 (5th Cir. 2016) (determining no error in
district court’s, inter alia, using Drug Conversion Tables when determining
sentence).
ii.
Regarding substantive reasonableness, “[w]e apply a presumption of
reasonableness to a below-Guidelines sentence”. United States v. Sifuentes,
29
Case: 18-20671 Document: 00515514219 Page: 30 Date Filed: 08/04/2020
No. 18-20671
945 F.3d 865, 869 (5th Cir. 2019) (citation omitted), cert. denied, 2020 WL
1906704 (U.S. 20 Apr. 2020). The presumption may be rebutted upon
appellant’s “demonstrat[ing] that the sentence: (1) does not account for a factor
that should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors” in 18 U.S.C. § 3553(a). Id. (internal
quotation marks and citation omitted).
Craig has not rebutted this presumption. Her contention that her
advisory Guidelines sentencing range is “grossly unfair” is unavailing; the
court sentenced her to less than half her advisory range, and she does not
contend the court otherwise failed to account for a significant sentencing factor,
relied too heavily on an irrelevant or improper sentencing factor, or clearly
erred in balancing sentencing factors. See id. (citation omitted).
Moreover, she does not explain how the court, in determining her below-
Guidelines sentence, did not already perform the defendant-specific analysis
she seeks. In fact, at sentencing the court: stated Craig submitted “many
letters” with her sentencing memorandum in support of her request for a
downward variance; noted it “ha[d] read every letter that was submitted”; and
referred to the letters, their authors, and their contents during sentencing, as
well as other background information Craig included in her memorandum.
2.
Faithful “contends that the Sixth Amendment prohibits the practice of
increasing a defendant’s sentence based on judicially found facts, at least
where, as here, the result is a sentence that would otherwise be substantively
unreasonable”. According to Faithful, “[t]he proof at trial was at most
sufficient to establish beyond reasonable doubt that the drugs delivered to 35
patients . . . were issued via prescriptions written for no legitimate medical
purpose or outside the scope of professional practice”, yet the court, under
30
Case: 18-20671 Document: 00515514219 Page: 31 Date Filed: 08/04/2020
No. 18-20671
current law, was improperly “permitted to find that the preponderance of the
evidence established that every prescription written during the charged
conspiracy was more likely than not unlawful”.
As Faithful concedes, he did not preserve this contention in district court.
Yet again, review is only for plain error. E.g., Delgado, 672 F.3d at 328–30. In
any event, Faithful also correctly concedes his contention is foreclosed. See
United States v. Hebert, 813 F.3d 551, 564 (5th Cir. 2015) (“[C]ourts can engage
in judicial factfinding where[, as here,] the defendant’s sentence ultimately
falls within the statutory maximum term”.). Consequently, as stated in his
opening brief on appeal, Faithful “raises the issue here solely to preserve it for
possible further review”.
3.
For the personal money judgment against Faithful, the Government on
4 September 2018 filed its motion for a preliminary order of forfeiture
requesting such judgments against both appellants. In doing so, the
Government sought equivalent personal money judgments of $3,332,000
against both Craig and Faithful. It derived this amount from appellants’
equally splitting Gulfton’s daily proceeds, which it calculated to total
$6,664,000, based on, inter alia, an estimated payment of $340 per Gulfton
prescription.
The court sentenced both appellants individually on 20 September. At
sentencing, Faithful did not object to the requested $3,332,000 money
judgment. (As referenced below, Faithful’s trial counsel’s 21 September motion
to withdraw was granted on 24 September.) The court on 27 September
entered a preliminary order of forfeiture against Faithful, including a money
judgment in the Government’s requested amount. The court entered a final
forfeiture order on 11 January 2019.
31
Case: 18-20671 Document: 00515514219 Page: 32 Date Filed: 08/04/2020
No. 18-20671
Craig, however, did object at her sentencing to the Government’s seeking
a money judgment. The court gave her an opportunity to respond to the
Government’s motion for a preliminary order of forfeiture, and she filed her
objections on 4 October. Her response objected, inter alia, to the Government’s
using $340 as the estimated value of a Gulfton prescription, asserting: the
court had previously adopted her PSR’s estimating the value of each Gulfton
prescription at $300; and using $300, rather than $340, per prescription to
calculate the clinic’s daily proceeds resulted in a money judgment of
$2,940,000. The Government responded to Craig’s objection, conceding “the
PSR states that the average charge for the drugs was $300 per patient” and
“amend[ing] its motion to request a personal money judgment . . . of
$2,940,000”. But, regarding Faithful, the Government then stated:
A money judgment in the amount of $3,332,000 . . . was imposed
against . . . Faithful, in reliance on the original calculations in the
motion, as Faithful did not object. Faithful has filed a notice of
appeal and is not currently represented by counsel, and the United
States is not seeking to modify his money judgment order at this
time. Given the finding adopted from the PSR, however, the
United States does not intend to enforce the money judgment
against Defendant Faithful past the amount of $2,940,000.
The court on 15 October entered a preliminary forfeiture order against Craig,
including a personal money judgment for $2,940,000. As it did for Faithful,
the court similarly entered a final order of forfeiture against Craig on 11
January 2019.
Faithful challenges his personal money judgment, asserting its correct
amount is $2,940,000, not $3,332,000, because the court had also previously
accepted the factual finding from his PSR that the estimated value of a Gulfton
prescription was $300, not $340.
32
Case: 18-20671 Document: 00515514219 Page: 33 Date Filed: 08/04/2020
No. 18-20671
a.
But, review is only for plain error. Faithful (as he concedes) did not
object in district court to the money-judgment amount. E.g., Delgado, 672 F.3d
at 328–30. And, as stated, on plain-error review Faithful must show a forfeited
plain error (clear or obvious error, rather than one subject to reasonable
dispute) that affected his substantial rights. Puckett, 556 U.S. at 135 (citations
omitted). “An error is considered plain, or obvious, for purposes of this court’s
plain[-]error inquiry only if the error is clear under existing law.” United States
v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007) (citation omitted). Also, “[a]s a
general rule, an error affects a defendant’s substantial rights only if the error
was prejudicial”, meaning “there is a reasonable probability that the result of
the proceedings would have been different but for the error”. United States v.
Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010) (citations omitted).
Again, if Faithful makes these showings, we have the discretion to correct such
reversible plain error but generally should do so only if it “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings”. Puckett,
556 U.S. at 135 (citation omitted).
In its brief on appeal, “the [G]overnment agrees that the lower [$300] is
appropriate and that the correct amount of [Faithful’s] money judgment should
be $2,940,000” and “does not oppose a limited remand for the sole purpose of
adjusting Faithful’s forfeiture money judgment”. Even so, “we must give the
issue independent review”. United States v. Suarez, 879 F.3d 626, 635 (5th
Cir. 2018) (internal quotation marks and citation omitted). Upon such review,
we agree a limited remand is warranted to reduce Faithful’s personal money
judgment to $2,940,000.
b.
Faithful and the Government are correct that the amount of his money
judgment is in error because the court had previously accepted the lower $300
33
Case: 18-20671 Document: 00515514219 Page: 34 Date Filed: 08/04/2020
No. 18-20671
estimated value for a Gulfton prescription from Faithful’s PSR as compared to
the $340 value the Government used in calculating the amount of his money
judgment. Moreover, this error was plain, as our law is clear that “[t]he
amount of a personal money judgment is measured by the proceeds of the
defendant’s illegal activity”, United States v. Nagin, 810 F.3d 348, 353 (5th Cir.
2016) (emphasis added) (citation omitted), and using an estimated value of
$340 per Gulfton prescription led to an overdetermination of the proceeds in
this instance. In addition: the error was obviously prejudicial to Faithful, as
shown by the reduced money judgment entered against Craig and the
Government’s concession as to the proper, reduced money-judgment amount;
and allowing the incorrect money judgment to stand implicates the fairness,
integrity, and public reputation of judicial proceedings. See Fed. R. Crim. P.
32.2(b)(1)(A) (“If the [G]overnment seeks a personal money judgment, the court
must determine the amount of money that the defendant will be ordered to
pay.”); id. 32.2(b)(1)(B) (“The court’s determination may be based on evidence
already in the record, including any written plea agreement, and on any
additional evidence or information submitted by the parties and accepted by
the court as relevant and reliable.”); United States v. Sanjar, 876 F.3d 725,
748–50 (5th Cir. 2017) (exercising discretion on plain-error review to vacate
forfeiture money judgment in excess of defendant’s proceeds); see also, e.g.,
United States v. Austin, 479 F.3d 363, 373 (5th Cir. 2007) (“When a defendant
is ordered to pay restitution in an amount greater than the loss caused, the
error affects substantial rights as well as the fairness and integrity of the
judicial proceeding.” (citations omitted)); United States v. Inman, 411 F.3d 591,
595 (5th Cir. 2005) (vacating restitution order on plain-error review and
remanding for modification when error caused “variance of over $70,000”).
Therefore, we exercise our discretion to correct this error.
34
Case: 18-20671 Document: 00515514219 Page: 35 Date Filed: 08/04/2020
No. 18-20671
III.
For the foregoing reasons, Craig’s and Faithful’s convictions and
sentences are AFFIRMED; Faithful’s personal money judgment is VACATED
IN PART; and this matter is REMANDED for the limited purpose of the
district court’s amending the amount of the personal money judgment against
Faithful consistent with this opinion.
Judge Haynes concurs in the judgment only.
35