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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13258
Non-Argument Calendar
________________________
D.C. Docket No. 2:13-cr-00004-LGW-JEG-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLEVELAND J. ENMON,
M.D.,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(April 27, 2017)
Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Dr. Cleveland Enmon was charged with 92 federal crimes arising from his
nine-month participation in two Georgia pain management clinics that purportedly
operated as “pill mills.” Dr. Enmon appeals his convictions and 240-month
sentence for conspiracy to unlawfully dispense controlled substances in violation
of 21 U.S.C. §§ 841(b)(1)(C) and 846, unlawful dispensation of controlled
substances in violation of §§ 841(a)(1), (b)(1)(C), (b)(1)(E), and (b)(2), and money
laundering in violation of 18 U.S.C. §§ 1957(a) and (b)(1).
Dr. Enmon raises four arguments on appeal. First, he asserts that the district
court plainly erred (a) by instructing the jury that his good faith belief that he was
acting in the usual course of professional practice was irrelevant and (b) by giving
the jury a general verdict form. Second, he challenges the district court’s decision
to allow him to represent himself at trial and at sentencing. Third, he claims that
the government presented insufficient evidence regarding the standard of medical
care in Georgia. Finally, he argues that his 240-month sentence was substantively
unreasonable. After careful review of the record and the parties’ briefs, we affirm.
I
Because we write for the parties, we assume their familiarity with the
underlying record and recite only what is necessary to resolve this appeal.
In May of 2011, Dr. Enmon was hired to work for a pain management clinic
called Brunswick Wellness operated by his then-supervisor, Ronald Colandrea.
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Brunswick Wellness was a cash-only facility with little to no medical equipment,
and employed doctors who were primarily responsible for issuing prescriptions.
During Dr. Enmon’s short employment at Brunswick Wellness, the clinic was the
subject of an ongoing investigation following a local pharmacist’s complaints
about the clinic’s practices.1
Undeterred by the Drug Enforcement Agency’s raid of Brunswick Wellness
in July of 2011, Dr. Enmon opened a new clinic called Ocean Care in another part
of Georgia just weeks later. Dr. Enmon was the only doctor at Ocean Care and he
personally issued handwritten prescriptions, charging customers $275 per visit.
Local pharmacists subsequently reported that Ocean Care was issuing an
inordinate amount of prescriptions and surrounding businesses complained about
large lines and loitering outside the clinic. In October of 2011, the DEA raided
Ocean Care and seized certain files and money orders. But Dr. Enmon remained
open for business through December of 2011.
Dr. Enmon was then arrested and charged with 92 federal counts of
unlawfully dispensing controlled substances, conspiracy, and money laundering
stemming from his employment at Brunswick Wellness and his operation of Ocean
Care. Concerned with his erratic behavior at a preliminary bond hearing, a
1
Customer records from Brunswick Wellness revealed that, in a 51-day period, Dr. Enmon saw
1,098 patients on 2,166 visits and wrote approximately 7,883 prescriptions for over 600,000
medications including Roxicodone (a brand of the generic drug oxycodone) and Xanax.
3
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magistrate judge ordered a mental evaluation of Dr. Enmon to determine whether
he was competent to stand trial. A forensic psychologist concluded that
Dr. Enmon was competent to stand trial despite his “grandiose sense of
self-importance” and that his uncooperative behavior was not based on delusion or
mental illness, but rather an attempt to avoid the legal process.
After the mental evaluation, Dr. Enmon expressed his desire to waive
counsel and proceed pro se. During a preliminary Faretta2 hearing before a
magistrate judge, Dr. Enmon’s attorney led the questioning about his age,
education, and familiarity with the legal process, and the judge warned Dr. Enmon
about the dangers of self-representation. Following the hearing, the magistrate
judge granted Dr. Enmon’s request, and Dr. Enmon signed a written waiver
acknowledging that he “knowingly, intelligently, and voluntarily” elected to waive
counsel, and that standby counsel had been appointed.
At a pretrial hearing before the district court two months later, Dr. Enmon
was similarly asked about his intention to waive counsel and reminded of the
intricacies and dangers of self-representation in a federal criminal trial. The
district court conducted a second Faretta hearing to ensure that Dr. Enmon’s
decision was knowing and voluntary. In pertinent part, the district court expressed
2
Faretta v. California, 422 U.S. 806 (1975).
4
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its concern as to whether Dr. Enmon understood the risks of self-representation by
giving the following warning:
Although the Magistrate Judge has covered this with you, I feel that it
is my obligation to cover it with you as well, and that is to make sure
you know that a trial of a federal criminal case here in this court is a
complex matter in which training and experience come to bear, in
particular, the training and experience that a trained and experienced
trial attorney would have. Although you have the right to proceed pro
se, it is, nevertheless, my obligation to hold you to the Rules of
Criminal Procedure and the Rules of Evidence as they apply in federal
court. I must tell you that even extremely intelligent people, like
yourself, find themselves hamstrung, to some extent, if they are not
extremely familiar with the Rules . . . because even if you do not
know them, I still must apply them. In fact, as a pro se litigant, you
are entitled to no greater leeway or no special treatment.
Tr. of Pretrial Conference, D.E. 123, at 7–8.
The district court asked Dr. Enmon if he understood and he replied that he
did. See id. The district court went on to describe court and trial procedures in
detail, including that Dr. Enmon could lose his opportunity to proceed pro se for
disrupting the trial or disregarding the rules of the court. After indicating that
standby counsel would be available at all times, the district court went over jury
selection and the procedure for opening statements, witness presentation,
Dr. Enmon’s right to testify, and final arguments.
In response, Dr. Enmon maintained that he was highly educated, intelligent,
and had experience representing himself in a previous criminal matter and in an
administrative hearing with the DEA. Moreover, Dr. Enmon stated for a second
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time that he understood the severity of the charges against him and the possible
penalties. The district court then granted Dr. Enmon’s request to waive counsel.
At trial, 28 witnesses testified about Brunswick Wellness, Ocean Care, and
Dr. Enmon’s medical practices at both clinics. The previous owner of Brunswick
Wellness, Mr. Colandrea, and the clinic’s former manager testified for the
government and admitted that they intended to run a “pill mill” from the start.
Other lay witnesses included the clinic’s former employees, Dr. Enmon’s patients,
doctors who also treated Dr. Enmon’s patients, and investigating agents. These
witnesses discussed the nature of the clinics and indicated that most (if not all) of
the prescriptions Dr. Enmon issued followed inadequate medical examinations.
The district court instructed the jury as to the elements of the crimes charged
against Dr. Enmon. In relevant part, the court instructed the jury that Dr. Enmon’s
good faith belief was irrelevant to the mens rea element for the unlawful
dispensation of controlled substances charge because the jury had to determine
from an objective standpoint whether Dr. Enmon issued prescriptions in the usual
course of professional practice. The jury later returned a verdict finding
Dr. Enmon guilty on all 92 counts.
After trial, Dr. Enmon requested that counsel be reappointed for sentencing.
But Dr. Enmon disagreed with a sentencing memorandum prepared by his attorney
(and its reference to the mental evaluation and report) and asked that the
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memorandum be withdrawn and that counsel be excused. Following a third
Faretta colloquy, the district court granted Dr. Enmon’s request to proceed pro se.
The district court then varied below the government’s requested sentence and the
advisory guidelines, and it imposed a 240-month sentence. Dr. Enmon now
appeals.
II
Dr. Enmon concedes that our review of his challenges to the jury
instructions and the general verdict form is for plain error because he failed to
object in the district court. See United States v. Moriarty, 429 F.3d 1012, 1018–19
(11th Cir. 2005). We have described plain error review as a “daunting obstacle,”
see United States v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998), because a
defendant must show that “there is (1) error, (2) that is plain, and (3) that affects
substantial rights.” Moriarty, 429 F.3d at 1019. “[I]f all three requirements are
met, it is still within [our] discretion whether to correct the forfeited error.”
Pielago, 135 F.3d at 708. The burden of establishing that an error affected
substantial rights “is anything but easy[,]” and it ultimately requires a defendant to
show that the error affected the outcome of the proceedings below. See United
States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005).
The Controlled Substances Act prohibits a physician from “knowingly or
intentionally” dispensing controlled substances, see 21 U.S.C. § 841(a)(1), but
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allows registered practitioners to dispense certain controlled substances with a
valid prescription. See § 829(a)-(b). A prescription for a controlled substance is
unlawful if a medical practitioner issues it without a legitimate medical purpose or
outside of the “usual course of his professional practice.” See 21 C.F.R.
§ 1306.04(a). We have held that a jury must determine from an objective
standpoint whether a prescription was issued in the usual course of professional
practice—that is, we look to whether the doctor’s practice was “in accordance with
a generally-accepted standard of medical practice.” See United States v. Merrill,
513 F.3d 1293, 1306 (11th Cir. 2008).
Dr. Enmon acknowledges that the district court correctly described the
elements of an offense under § 841(a)(1), but claims it committed plain error by
instructing the jury that his good faith belief was irrelevant to its determination of
whether he had issued prescriptions in the “usual course of his professional
practice.” In pertinent part, the district court gave the following instruction:
Whether the Defendant acted outside the usual course of professional
practice is to be judged objectively by reference to standards of
medical practice generally recognized and accepted in the United
States. Therefore, whether the Defendant had a good faith belief that
he dispensed a controlled substance in the usual course of his
professional practice is irrelevant.
However, whether the Defendant acted without a legitimate medical
purpose depends on the Defendant’s subjective belief about whether
he was dispensing the controlled substance for a legitimate medical
purpose. Therefore, in order for the Government to establish that the
Defendant was acting without [a] legitimate medical purpose, the
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Government must prove beyond a reasonable doubt that the
Defendant did not subjectively believe that he was dispensing the
controlled substance for a legitimate medical purpose.
Tr. of Trial Proceedings, D.E. 127, at 168 (emphasis added).
In support of his argument, Dr. Enmon primarily relies on our decision in
United States v. Tobin, 676 F.3d 1264 (11th Cir. 2012). Dr. Enmon is correct that
we observed in Tobin “that our precedent has not always been clear in specifying
the standpoint from which a jury is to determine whether a prescription was ‘issued
. . . by an individual practitioner acting in the usual course of his professional
practice.’” Id. at 1282 (citation omitted). We described the confusion by
reviewing two prior cases where we held that a doctor’s behavior “must be judged
by an ‘objective standard[,]’ . . . [y]et . . . approved a charge that instructed the jury
to consider whether the defendant had a ‘good faith’ belief that he was prescribing
medicine” in line with that objective standard. See id. Even in light of that
discrepancy, we held that our precedents, when “read . . . to form a coherent
whole[,] . . . stand for the proposition that a jury must determine from an objective
standpoint whether a prescription is made in the ‘usual course of professional
practice.’” See id. at 1282–83 (citations omitted).
Dr. Enmon misinterprets our analysis in Tobin, however, to mean that his
good faith belief was relevant under the objective standard the jury was required to
employ. The problem is that Dr. Enmon misses our ultimate conclusion in
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Tobin—in that case, we affirmed the district court’s rejection of the defendants’
proposed jury instructions with regard to their “subjective beliefs that they were
acting in the usual course of professional practice . . . because [the instructions] did
not provide ‘a correct statement of the law.’” Id. at 1283.
To the extent Dr. Enmon’s subjective belief was relevant to the jury’s
decision, the district court correctly (and favorably) explained that whether Dr.
Enmon dispensed controlled substances “for a legitimate medical purpose” could
be viewed from a subjective standpoint. Dr. Enmon’s argument that we have never
(unequivocally) held that good faith is irrelevant to the objective standard required
for the “usual course of his professional practice” analysis, without more, does not
support a finding of plain error here.3
In addition, Dr. Enmon argues that the jury’s general verdict form violated
his due process rights under the Fifth Amendment because the district court was
required to give the jury a special verdict form for each of the substantive counts.
Dr. Enmon admits that he consented to the general verdict form, but argues that by
listing the requirements for the mens rea element separately, the district court
prevented the jury from reaching a unanimous verdict.
Specifically, Dr. Enmon claims that the district court erred by informing the
jury that it could find he acted “knowingly and intentionally” by either issuing
3
In any event, Dr. Enmon does not attempt to explain how the court’s jury instruction impacted
his substantial rights or the course of the proceedings below. See Moriarty, 429 F.3d at 1019.
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prescriptions outside the usual course of professional practice or not for a
legitimate purpose. The sole case upon which Dr. Enmon relies, Schad v. Arizona,
501 U.S. 624 (1991), does not support his argument. In Schad, the Supreme Court
considered a general verdict instruction related to a state’s first-degree murder
statute that listed three alternative ways to commit the crime. See id. at 629–30.
Writing for a plurality of the Court, Justice Souter recognized that “legislatures
frequently enumerate alternative means of committing a crime without intending to
define separate elements or separate crimes[,]” see id. at 636, and rejected the
petitioner’s due process challenge to his conviction under instructions that did not
require the jury to agree on one of the alternative means. See id. at 643–45.
Here, the district court correctly instructed the jury that it could find
Dr. Enmon guilty only if all of the elements were proven beyond a reasonable
doubt. See United States v. Griffin, 705 F.2d 434, 437 (11th Cir. 1983) (noting that
a special verdict form is often “disfavored” in criminal trials and is unnecessary
where a court instructs a jury that they “would have to agree on all essential
elements of the offense” charged). Dr. Enmon has therefore not established that
the jury instruction or the special verdict form affected his substantial rights or the
outcome of the proceedings below.
III
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A district court’s conclusion that a defendant has validly waived his right to
counsel is a mixed question of law and fact that we review de novo. See United
States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995). When a defendant asserts his
or her constitutional right to self-representation, “[t]he ultimate test is not the trial
court’s express advice, but rather the defendant’s understanding” of the risks of
self-representation. Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.
1986). We have described several factors that impact a defendant’s knowing and
voluntary waiver of counsel including, but not limited to, a defendant’s age, health,
and education, a defendant’s contact with an attorney prior to trial, a defendant’s
“knowledge of the nature of the charges and the possible penalty he [i]s subject to
if convicted,” a defendant’s familiarity with courtroom procedure, and whether
standby counsel is appointed and available to assist during the defendant’s trial.
See id. at 1065–66.
Dr. Enmon first argues that his standby counsel’s leading questions about his
age, education, professional experience, knowledge of the criminal charges, and
lack of formal legal training during the initial Faretta hearing prevented the
magistrate judge from having a meaningful discussion about the pitfalls of
self-representation. Although it may have been better for the judge to conduct the
initial questioning, the inquiry turns on whether those factors establish that a
defendant understands the risks of self-representation. See Fitzpatrick, 800 F.2d at
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1065. Moreover, the judge took time after the attorney’s questions to expressly
advise Dr. Enmon that it is unwise to waive counsel and that a trained lawyer could
better represent him, “just as it would be unwise for any person trained in law to
try to practice medicine upon themselves.” Tr. of Faretta Hearing, D.E. 45, at 16.
The judge then warned Dr. Enmon that he was not familiar with court procedures
or the rules of evidence and asked him again if he still wanted to proceed pro se.
Dr. Enmon said that he did, and the judge indicated that standby counsel would be
available. Dr. Enmon confirmed that he had made his decision freely and without
improper influence, and he signed a written waiver.
Two months later, Dr. Enmon appeared for a pretrial hearing before the
district court. Although the district court referred to the initial hearing before the
magistrate judge, it stated its intention to conduct a second Faretta hearing. Like
the magistrate judge, the district court gave Dr. Enmon a detailed, express warning
about the dangers of self-representation in a complex federal criminal trial. The
district court also considered Dr. Enmon’s education and experience, confirmed
that Dr. Enmon understood the charges and possible penalties, described the trial
process in detail, clarified that standby counsel is not “co-counsel,” and asked
standby counsel to guide Dr. Enmon on direct examination and cross-examination
of witnesses. Tr. of Pretrial Conference, D.E. 123, at 5–10, 12–14, 37.
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Although Dr. Enmon agrees that an adequate waiver “depends on the
particular facts and circumstances of each case,” see Br. of Appellant at 64, his
primary argument is that the colloquy in the district court closely resembled the
inadequate Faretta hearing in Cash, 47 F.3d at 1088. But the Faretta colloquies in
this case are distinguishable in important ways. First, in Cash, the district court
granted the defendant’s request to proceed pro se “on the very day of the trial.” Id.
(emphasis in original). Second, the court in Cash failed to consider defendant’s
knowledge of the charges and potential penalties he faced or his familiarity with
courtroom procedure and evidentiary rules. See id. Lastly, and significantly, the
district court “generally discouraged self-representation and made some inquiry
into [the defendant’s] reasons for wishing to represent himself” instead of
conducting a searching inquiry to confirm that the waiver was made knowingly
and intelligently. Id. Unlike the district court in Cash, both the magistrate judge
and district court here—in two separate hearings that occurred before trial—
conducted a thorough inquiry to ensure that Dr. Enmon understood the risks of the
self-representation.
As to the sentencing hearing, Dr. Enmon claims that the district court
granted his request to proceed pro se after only a brief exchange. See Br. of
Appellant at 15. But this claim is refuted by the record. The district court
expressly stated that “[a]lthough, conceivably, [it] could travel on the prior Faretta
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hearing,” the court decided it would instead “reinstitute certain questions and make
sure that, again, at this juncture . . . [Dr. Enmon’s] decision [wa]s made knowingly,
intelligently, and voluntarily.” Tr. of Sentencing Hearing, D.E. 128, at 7. In the
same way it had done before trial, the district court explained that Dr. Enmon
would be treated as an attorney, held to the rules of procedure, and that Dr. Enmon
faced “very stiff penalties” at the sentencing proceeding. Id. at 8–9. The district
court then asked whether Dr. Enmon had reviewed the presentence investigation
report and discussed it with his attorney and whether Dr. Enmon understood that
the PSI had recommended a sentence of 360 months’ imprisonment, while the
advisory guidelines recommended up to 16,260 months’ imprisonment. See id. at
9. The district court then confirmed that Dr. Enmon was well-educated and that he
had represented himself during trial and on previous occasions. Finally, the district
court warned Dr. Enmon again that a trained lawyer could better represent him and
asked Dr. Enmon if he understood the disadvantages of choosing to represent
himself. Dr. Enmon responded, for a third time, that he understood and that he
wanted to exercise his constitutional right to self-representation. See id. at 10.
In three separate Faretta hearings, Dr. Enmon was warned of the dangers of
self-representation and reminded of the seriousness of the charges against him and
the penalties he faced, and he swore under oath each time that he understood the
risks and that his waiver was knowing and voluntary. The district court therefore
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did not err by observing Dr. Enmon’s constitutional right to self-representation and
by granting his request to waive counsel during trial and at sentencing.
IV
We generally review de novo whether the evidence was sufficient to sustain
a conviction. See United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004).
But where, as here, a defendant fails to move for a judgment of acquittal or renew
such motion at the close of the evidence, that error “operates as a waiver . . . and
forecloses any review of the sufficiency of the evidence except where a
miscarriage of justice would result.” United States v. Tapia, 761 F.2d 1488, 1492
(11th Cir. 1985) (internal citation and quotation marks omitted). We have
interpreted this standard to require “a finding that ‘the evidence on a key element
of the offense is so tenuous that a conviction would be shocking.’”4 Id.
In analyzing the sufficiency of the evidence, we view the evidence in the
light most favorable to the government and accept all reasonable inferences in
favor of the jury’s verdict. See United States v. Hernandez, 433 F.3d 1328, 1335
(11th Cir. 2005). “[A] jury may find that a doctor violated the [Controlled
Substances] Act from evidence received from lay witnesses surrounding the facts
4
After the government rested its case, the district court expressly asked Dr. Enmon if he wanted
to move for a judgment of acquittal, but he declined to do so. Tr. of Trial Proceedings, D.E. 127,
at 20. Following the jury’s verdict, Dr. Enmon’s standby counsel filed a one-page motion for a
new trial, and the court ordered Dr. Enmon to file briefing to support the motion. Dr. Enmon
chose not to and instead filed a pro se motion to vacate his conviction claiming the magistrate
judge had improperly issued warrants against him.
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and circumstances of the prescriptions.” United States v. Joseph, 709 F.3d 1082,
1100 (11th Cir. 2013) (internal citation and quotation marks omitted). Moreover, a
“jury has exclusive province over [weighing the credibility of witnesses] and [we]
may not revisit this question.” United States v. Chastain, 198 F.3d 1338, 1351
(11th Cir. 1999).
To support his insufficiency claim, Dr. Enmon’s only argument is that the
government failed to present evidence regarding the applicable medical standards
in Georgia, and that the error precluded the jury from finding that he did not
prescribe medication for “a legitimate medical purpose” because the jury had no
reliable benchmark by which to judge the allegations against him. See Br. of
Appellant at 71. But the state’s standard of medical care is not a necessary element
of the federal offense, and Dr. Enmon has not pointed to evidence “on a key
element of the offense” that is “so tenuous” as to establish manifest injustice.
Tapia, 761 F.2d at 1488. See also Joseph, 709 F.3d at 1096 (rejecting, on plain
error review, an objection to a jury instruction that measured conduct of a
physician objectively based on generally accepted standards in the United States).
Irrespective of Georgia’s medical standards, the jury was presented with
sufficient evidence to infer that Dr. Enmon acted outside the scope of professional
practice and without a legitimate medical purpose in issuing prescriptions. Several
lay witnesses described the events that led to Dr. Enmon’s arrest and stated that
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Dr. Enmon prescribed large amounts of medications after conducting cursory
examinations of patients. Other witnesses testified that Dr. Enmon knew or should
have known that his patients were abusing prescription drugs and that long lines
formed outside the clinics each day. The government also elicited expert
testimony from two witnesses who reported that Dr. Enmon’s methods were not
within the usual course of professional practice and that the overwhelming
majority of Dr. Enmon’s prescriptions were not medically indicated. Significantly,
Dr. Enmon’s former supervisor at Brunswick Wellness, Mr. Colandrea, and the
clinic’s former manager testified that they intended to run Brunswick Wellness as a
“pill mill.” Moreover, several of Dr. Enmon’s former patients corroborated the
testimony of other witnesses by admitting that they sought medications they did
not need.
In sum, at least 28 witnesses testified about specific facts establishing that
Dr. Enmon’s practice of prescribing medications was not legitimate or not based
on comprehensive medical examinations of patients. And finally, Dr. Enmon
testified on his own behalf and claimed that he did not act outside of the usual
course of professional practice. It was the province of the jury to discredit that
testimony and credit the testimony of the other witnesses. See Joseph, 709 F.3d at
1100. Dr. Enmon therefore has not met the “miscarriage of justice” standard here.
V
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Dr. Enmon’s final argument is that his 240-month sentence is substantively
unreasonable. We review the reasonableness of a sentence under a deferential
abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 41 (2007).
The party challenging the sentence bears the burden of showing that it is
substantively unreasonable in light of the record and the § 3553(a) factors. See
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We will vacate a
sentence only if “we are left with the definite and firm conviction that the district
court committed a clear error of judgment in weighing the § 3553(a) factors by
arriving at a sentence that lies outside the range of reasonable sentences dictated by
the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)
(en banc) (internal quotation marks and citation omitted).
A district court “shall impose a sentence sufficient, but not greater than
necessary to comply with the purposes” listed in § 3553(a), including the need “to
afford adequate deterrence to criminal conduct, to protect the public from further
crimes of the defendant [and] to provide the defendant with needed . . . correctional
treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2)(B)-(D).
Additional factors include “the nature and circumstances of the offense and the
history and characteristics of the defendant . . . [and] the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” Id. at §§ 3553(a)(1), (6). There is no unwarranted
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disparity, however, “when a cooperating defendant pleads guilty and receives a
lesser sentence than a defendant who proceeds to trial.” United States v. Langston,
590 F.3d 1226, 1237 (11th Cir. 2009). A court must consider significant
distinctions and it “should not draw comparisons to cases involving defendants
who were convicted of less serious offenses.” See United States v. Jayyousi, 657
F.3d 1085, 1118 (11th Cir. 2011).
Dr. Enmon’s primary argument is that the drug guideline was drafted “with a
view towards illicit drug dealers and not doctors who have been convicted of
prescribing [medications] outside the usual course of professional practice.” Br. of
Appellant at 75. In Dr. Enmon’s view, doctors do not need deterrence in the same
way as “hardened drug dealers from the streets.” Id.
Dr. Enmon’s sentence of 240 months’ imprisonment, however, is well below
the advisory guidelines’ recommendation of 16,260 months based on the large
amount of controlled substances that Dr. Enmon prescribed, and that variance is an
indicator of reasonableness. See, e.g., United States v. Hunt, 526 F.3d 739, 746
(11th Cir. 2008) (highlighting that we expect a sentence within the advisory
guideline range to be reasonable).5 Moreover, the district court stated that the
advisory guideline range was “astounding” and “obviously far too much.” Tr. of
5
At sentencing, the government alluded to the evidence presented at trial indicating that
Dr. Enmon wrote up to “155 prescriptions and [saw] 42 patients a day.” Tr. of Sentencing
Hearing, D.E. 128 at 39.
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Sentencing Hearing, D.E. 128 at 50. The district court was not unsympathetic to
Dr. Enmon’s legitimate concern about his inability to practice medicine; instead, it
balanced Dr. Enmon’s history and characteristics with the specific facts and
circumstances of his offense. The district court also referenced its need to “find a
punishment that is sufficient, but not greater than necessary, to accomplish the
purposes of the punishment.” Id. And finally, the district court noted that although
a forensic report indicated Dr. Enmon had “anti-social [and] narcicisstic
personality characteristics,” it was not going to hold those findings against
Dr. Enmon or allow the report to impact its sentencing decision. See id. at 51.
Dr. Enmon also argues that the district court abused its discretion by
ignoring his sentencing disparity claim under § 3553(a)(6). But Dr. Enmon has not
met his burden of presenting a suitable, comparable case. The only comparable
defendant that Dr. Enmon offers is a co-conspirator, Mr. Colandrea. But
Mr. Colandrea’s situation is distinguishable because he pled guilty to conspiracy,
accepted responsibility for the crime, and substantially assisted in the investigation
and prosecution of others related to the “pill mill” operation. See Langston, 590
F.3d at 1237. See also United States v. Williams, 526 F.3d 1312, 1323 (11th Cir.
2008) (noting that a defendant’s situation is not comparable to a co-conspirator
who pleads guilty and assists the government). In exchange, the government
moved for a downward departure and the district court was within its discretion to
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Case: 14-13258 Date Filed: 04/27/2017 Page: 22 of 22
reduce Mr. Colandrea’s sentence. Without a comparable defendant—one with a
similar record, who has been found guilty of similar criminal conduct—there
cannot be a proper comparison of sentences under § 3553(a)(6). See Langston, 590
F.3d at 1237. See also United States v. Martin, 455 F.3d 1227, 1241 (11th Cir.
2006) (refusing to compare sentences without “a valid comparator”).
Because Dr. Enmon has not demonstrated that his sentence was
substantively unreasonable in light of the record and the § 3553(a) factors, we
affirm his 240-month sentence.
VI
Dr. Enmon has not established that the district court plainly erred in
instructing the jury or providing the jury with a general verdict form, that the
district court erred in allowing him to proceed pro se, that the jury’s verdict was
manifestly unjust in light of the evidence presented, or that the district court
imposed a substantively unreasonable sentence. We therefore affirm Dr. Enmon’s
convictions and sentence.
AFFIRMED.
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