US v. Perry Reese, III

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:08-cr-00034-FL-1 Copies to all parties and the district court/agency. [998645174].. [10-4218]

Appeal: 10-4218

Document: 71

Date Filed: 08/02/2011

Page: 1 of 14

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4218

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PERRY REESE, III,
Defendant - Appellant.

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:

June 23, 2011

Before WYNN and
Circuit Judge.

DIAZ,

Decided:

Circuit

Judges,

and

August 2, 2011

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C, Covington,
Kentucky, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, David A. Bragdon, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-4218

Document: 71

Date Filed: 08/02/2011

Page: 2 of 14

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

court sentenced Reese to 240 months’ imprisonment.
Reese

challenges

several grounds.

his

convictions

that

the

sentence

on

First, he appeals the district court’s denial

of his motion for a judgment of acquittal.
argues

and

racketeering

Alternatively, Reese

conviction

should

be

vacated

because the district court erred in instructing the jury.

With

respect to the 240-month sentence imposed by the district court,
Reese argues first that the district court erred in calculating
the drug weight used in determining his Sentencing Guidelines
range

and

second

substantively

that

the

unreasonable.

sentence

was

For

following

the

procedurally
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

Appeal: 10-4218

Document: 71

government’s
unlawfully

Date Filed: 08/02/2011

evidence
dispensed

was

Page: 3 of 14

insufficient

controlled

to

prove

substances.

that
review

We

he
a

district court’s denial of a Rule 29 motion for judgment of
acquittal de novo, United States v. Alerre, 430 F.3d 681, 693
(4th Cir. 2005), and are required to sustain the jury’s verdict
if, viewing the evidence in the light most favorable to the
government,

“a

rational

trier

of

fact

could

have

found

the

essential elements of the charged offense beyond a reasonable
doubt,” United States v. Singh, 518 F.3d 236, 246 (4th Cir.
2008).

In

reviewing

a

sufficiency

claim,

we

“must

consider

circumstantial as well as direct evidence, 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), and “may not weigh the
evidence or review the credibility of the witnesses . . . those
functions are reserved for the jury,” United States v. Wilson,
118 F.3d 228, 234 (4th Cir. 1997).
Title
authorized
person

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,

distribute, or dispense . . . a controlled substance.”
medical

for

as

However,

General

“are

authorized to write prescriptions for or to otherwise dispense
controlled

substances,

so

long
3

as

they

comply

with

the

Appeal: 10-4218

Document: 71

Date Filed: 08/02/2011

Page: 4 of 14

requirements of their registration.”

United States v. Hurwitz,

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

Id. (citing 21 C.F.R. § 1306.04(a)).

Thus, to convict Reese of the two 21 U.S.C. § 841
charges,

the

government

was

required

to

prove

that

(1)

he

“distributed or 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.”

United States v. Singh, 54 F.3d 1182, 1187

(1995) (quoting United States v. Tran Trong Cuong, 18 F.3d 1132,
1141 (4th Cir. 1994)).
As to the third element of the offense, Reese contends
that the government was required to prove that he distributed
controlled

substances

outside

the

usual

course

of

his

professional practice and not for a legitimate medical purpose.
Reese

argues

that,

at

most,

the

government’s

evidence

was

sufficient to prove the former but not the latter.
We do not read the relevant statute and regulations as
requiring the proof urged by Reese.
4

See, e.g., United States v.

Appeal: 10-4218

Document: 71

Date Filed: 08/02/2011

Page: 5 of 14

Hitzig, 63 F. App’x 83, 87 (4th Cir. 2003) (“We reject [the
defendant’s] contention that the district court erred because it
did not instruct the jury that the government was required to
prove that he both dispensed the controlled substances not for a
legitimate medical purpose in the usual course of professional
medical practice and in a manner that is beyond the bounds of
professional

medical

practice.”).

Rather,

“[o]ur

precedent

makes it clear that the standard for criminal liability is that
the

physician’s

conduct

in

dispensing

a

controlled

substance

falls outside the boundaries of the [physician’s] professional
practice.

While the government may meet its burden of proving

guilt

showing

by

that

a

physician

dispensed

a

controlled

substance for an illegitimate purpose, the government is not
required to make such a showing.”
quotation

omitted).

Accord

Id. (internal citation and

Singh,

54

F.3d

at

1187

(“[T]he

evidence must show that the defendant’s actions were not for
legitimate

medical

purposes

in

the

usual

course

of

his

professional practice or [were] beyond the bounds of medical
practice.”) (emphasis added; internal quotation omitted); Tran
Trong

Cuong,

[district]

18

court

F.3d

at

‘without

1138
a

(“The

legitimate

standard
medical

used

by

purpose’

the
does

appear to be more strict than that required by Moore [423 U.S.
122 (1975)] and therefore was to defendant’s benefit.”).

But

see United States v. Rosenberg, 585 F.3d 355, 357 (7th Cir.
5

Appeal: 10-4218

Document: 71

Date Filed: 08/02/2011

Page: 6 of 14

2009) (“[I]n order for a prescription to be unlawful it must not
have

a

legitimate

purpose

and

must

be

dispensed

outside

the

usual course of medical practice.”); United States v. Rosen, 582
F.2d

1032,

1033

(5th

Cir.

1978)

(holding

that

to

convict

a

doctor under 21 U.S.C. § 841 the government must prove that he
acted “other than for a legitimate medical purpose and in the
usual course of his professional practice”).

In any event, the

district court instructed the jury on the heightened standard
proposed by Reese and the government’s evidence at trial was
more than sufficient to support the jury’s verdict.
With

respect

to

Count

I

of

the

indictment,

the

government’s evidence showed that Christy Brewington, a special
agent

with

the

North

Carolina

State

Bureau

of

Investigation

(“SBI”), made three undercover visits to Reese’s office while
posing as a patient, after the SBI had been tipped off that
Reese

was

directly

selling

to

prescriptions

patients.

Reese

and

failed

controlled
to

perform

substances
any

basic

diagnostic questioning or examination of Agent Brewington over
the course of her three visits, but rather simply complied with
Brewington’s

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

Brewington was questioned about the prescriptions, and collected
payment.

The government’s evidence also showed that, following
6

Appeal: 10-4218

each

Document: 71

visit,

Date Filed: 08/02/2011

Reese

falsified

Page: 7 of 14

Brewington’s

patient

examination

forms to reflect medical tests that were never conducted and
discussion of pain and medications that never occurred.
As to Count II, involving Reese’s conduct with respect
to

Elizabeth

Sanders,

the

government’s

evidence

showed

that

Reese conducted a limited physical examination of Sanders during
her first office visit, and thereafter abandoned any diagnostic
testing while increasing her prescriptions to about 20 pills of
Percocet per day.
Reese

cash

for

The evidence also showed that Sanders paid

prescriptions

and

gave

him

rings,

watches,

a

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 Sanders’s 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 Sanders’s teenage daughter.
Beyond

these

specific

instances,

the

government’s

evidence also showed that Reese conducted limited or no physical
examinations of other patients and sold them prescriptions--and
in

some

cases

sold

them

drugs

directly.

Reese

also

wrote

prescriptions in the names of his patients’ family members to
avoid triggering the suspicion of the authorities.
testified

that

Reese

told

him
7

to

chew

OxyContin

One patient
pills

for

Appeal: 10-4218

Document: 71

quicker effect.
specialist,

Date Filed: 08/02/2011

Page: 8 of 14

Moreover, Dr. Mark Romanoff, a pain management

opined

conduct

proper

issuing

patients

that

Reese’s

examinations,

actions

diagnosis,

prescriptions

in

in

(1)

and

others’

failing

follow-up,
names,

(3)

to
(2)
re-

dispensing pills that patients had returned to him, (4) selling
pills directly to patients without a dispensing license, (5)
charging

for

a

prescription

without

seeing

the

patient,

(6)

routinely prescribing medications outside of the office setting,
(7)

prescribing

patients

up

to

20

pills

per

day,

and

(8)

recommending that one of his patients chew OxyContin, were all
inappropriate behaviors and beyond the bounds of professional
medical practice.
Viewing this evidence, as we must, in the light most
favorable to the government, we conclude that a rational trier
of fact would have little trouble finding that Reese’s actions
were outside the scope of medical practice and, even though the
government was not required to so prove, not for any legitimate
medical purpose.

Accordingly, the district court did not err in

denying Reese’s motion for judgment of acquittal.

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

Appeal: 10-4218

Document: 71

Organizations

Act

Date Filed: 08/02/2011

(“RICO”),

the

Page: 9 of 14

enterprise

alleged

by

the

government to have been engaged in criminal activity must have
an existence separate from Reese.

The enterprise alleged in

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

We review a “district court’s decision
give

a

jury

instruction

for

abuse

of

United States v. Passaro, 577 F.3d 207, 221 (4th

Cir. 2009) (citing United States v. Moye, 454 F.3d 390, 397-98
(4th Cir. 2006)).

“We review a jury instruction to determine

whether, taken as a whole, the instruction fairly states the
controlling law.”
omitted).

Moye, 454 F.3d at 398 (internal quotation

An error in a jury instruction will warrant reversal

“only when the error is prejudicial based on a review of the
record as a whole.”

United States v. Ellis, 121 F.3d 908, 923

(4th Cir. 1997).
Reese

contends

that

the

district

court

abused

its

discretion when it eliminated the following sentence from the
proposed

RICO

instruction:

“The

enterprise

must

have

some

separate existence from the defendant, that is, the defendant
cannot

be

both

Reese

argues

the
that

RICO

defendant

the

government

and

the

must

RICO

prove

enterprise.”
that

“[t]he

enterprise must be distinct from the persons alleged to have
violated § 1962(c).”

Palmetto State Medical Ctr. v. Operation
9

Appeal: 10-4218

Document: 71

Date Filed: 08/02/2011

Page: 10 of 14

Lifeline, 117 F.3d 142, 148 (4th Cir. 1997).
does

not

contest

this

point,

but

argues

The government

that

a

distinction

between the enterprise and the defendant is established where
the enterprise is a legal entity and the defendant is a person.
Viewing the RICO instruction as a whole, we conclude
that the district court correctly instructed the jury that the
government must prove the existence of an enterprise, including
any

legal

association,

entity
that

such
the

as

a

partnership,

enterprise

was

corporation,

engaged

in

or

interstate

commerce, and that the defendant was associated with or employed
by the enterprise.
controlling

law

Thus, the district court fairly stated the

and

did

not

err

by

omitting

the

proposed

statement from the instruction.

C.
Reese next challenges his sentence, arguing that the
district

court

improperly

calculated

the

quantity

of

drugs

attributable to his conduct by failing to exclude prescriptions
written in good faith.
findings

as

to

the

We review the district court’s factual

application

of

the

Guidelines

for

clear

error.

United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.

1989).

Finding no clear error with respect to either point

Reese presses on appeal--that the district court’s estimate as
to the drug quantity attributable to Reese was not conservative
10

Appeal: 10-4218

Document: 71

enough

and

quantity

that

of

legitimate

Date Filed: 08/02/2011

the

drugs

district
that

Page: 11 of 14

court

should

have

argues

were

purposes--we

medical

Reese

affirm

the

excluded

the

prescribed
district

for

court’s

calculations.
Finally,
procedurally

Reese

and

argues

that

substantively

his

sentence

unreasonable.

was
We

both
review

sentences “under a deferential abuse of discretion standard.”
United States v. Grubbs, 585 F.3d 793, 803 (4th Cir. 2009).
First, we review a sentence to “ensure 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, [or] failing to consider
Gall v. United States, 552 U.S. 38, 51

the § 3553(a) factors.”
(2007).

Next,

we

review

for

substantive

reasonableness,

“examin[ing] the totality of the circumstances to see whether
the sentencing court abused its discretion in concluding that
the

sentence

it

chose

satisfied

the

standards

set

forth

in

United States v. Mendoza-Mendoza, 597 F.3d 212, 216

§ 3553(a).”

(4th Cir. 2010).
Reese’s
level

of

substances
kilograms.

32

on

with

presentence
the
a

With

ground

total
six

report
that

Reese

marijuana

levels

of

suggested

a

base

distributed

equivalency
enhancements,

offense

controlled

exceeding
two

each

1000
for

abusing a position of public or private trust, using a minor to
11

Appeal: 10-4218

Document: 71

Date Filed: 08/02/2011

Page: 12 of 14

commit the offense, and obstructing justice, the total offense
level was 38. 1

Because Reese had no prior criminal history, his

Guidelines sentence range was 235 to 293 months’ imprisonment.
Reese

pressed

for

a

downward

departure

from

the

Guidelines

sentence, based on mitigating circumstances that he argued were
not adequately considered by the Guidelines.
rejected

this

imprisonment,

argument
the

and

effective

sentenced
Guidelines

The district court

Reese

to

sentence

240
based

months’
on

the

statutory maximum for the two § 841(a)(1) counts.
Reese

argues

that

the

district

court

erred

procedurally by declining “to consider grounds founded in the
age

of

the

defendant,

his

family

connections

and

ties,

his

military service, his lack of a criminal history, or his public
service, or other reasons offered.”

J.A. 819.

We disagree.

The district court declined to consider these factors
when assessing Reese’s argument for a downward departure from
the Guidelines sentence.

As Reese conceded during sentencing,

the Guidelines specifically discourage a downward departure on
the

basis

of

these

factors

1

except

in

extraordinary

Reese’s presentence report originally calculated a total
offense level of 42, having included an additional four points
on the basis that Reese was an organizer or leader of a criminal
activity involving five or more participants.
However, the
government agreed that this adjustment was inappropriate and the
district court subtracted the four points, resulting in a total
offense level of 38.

12

Appeal: 10-4218

Document: 71

circumstances.

Date Filed: 08/02/2011

Page: 13 of 14

The court, did, however, analyze the § 3553(a)

factors--including

Reese’s

military

service,

family

history,

education, health, and service to community--before determining
that a 240-month sentence was sufficient and no greater than
necessary to accomplish the purpose of sentencing.

Accordingly,

we find no procedural error in the district court’s sentencing
calculus.
Reese next argues that his sentence was substantively
unreasonable

in

light

of

all

the

§

3553(a)

factors.

Specifically, Reese contends that the district court’s sentence
is too severe and far in excess of that imposed on others for
similar

offenses.

According

to

Reese,

physicians

previously

convicted of similar offenses have received drastically shorter
sentences–-in the range of seven to 78 months–-and that it is
“all but unheard of that a physician would be ordered to serve
20 years or more.”

Appellant’s Br. 39.

First, we reject Reese’s argument that the cases he
cites

provide

a

meaningful

guidepost

for

substantive reasonableness of his sentence.

assessing

the

As the government

notes, the sentences that Reese points to as comparable are in
fact easily distinguishable based on, among other things, the
offenses charged, the schedule of the drug at issue, the drug
quantity,

the

enhancements,

applicability
and

the

of

specific
13

certain
offender

departures
and

or

offense

Appeal: 10-4218

Document: 71

Date Filed: 08/02/2011

Page: 14 of 14

characteristics that may have motivated the district court to
vary from an advisory sentencing range.

Moreover, in enacting

the Sentencing Guidelines, “Congress sought proportionality in
sentencing through a system that imposes appropriately different
sentences for criminal conduct of differing severity.”

U.S.S.G.

Ch. 1 Pt. A § 3.

We are satisfied with the district court’s

determination

Reese’s

that

sentence

severity of his charged conduct.
that

the

district’s

court’s

was

proportional

to

the

Finally, we are to presume

chosen

sentence

is

substantively

reasonable where, as here, it is within a correctly calculated
Guidelines

range.

Mendoza-Mendoza,

597

F.3d

at

217.

After

careful review, we find no cause to upset that presumption and
therefore affirm the district court’s sentence.

II.
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED

14