1 The Honorable Linda R. Reade, Chief Judge, United States District Court, Northern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1010

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Thomas A. Hanny; * Thomas A. Hanny, M.D., * * Appellant. *

___________ Submitted: September 24, 2007 Filed: December 12, 2007

___________ Before MURPHY, MELLOY, and SMITH, Circuit Judges.

___________ SMITH, Circuit Judge. Dr. Thomas Hanny pleaded guilty to conspiring to distribute controlled substances outside the course of normal medical practice and engaging in a monetary transaction over $10,000 derived from the proceed s of this activity, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 1957 resp ectively. The district court 1 sentenced Hanny to 33 months' imprisonment. Hanny appeals, arguing that the district court incorrectly calculated his Guidelines range by improperly applying a sentencing enhancement for-2- distributing controlled substances through mass-marketing by means of an interactive computer service. We affirm.

I. Background Dr. Thomas Hanny, a physician licensed in Connecticut, ended his 30-year career as a surgeon in October 2003. Following his retirement, Hanny received an offer to work for Pharmacom, a compa ny that sold prescription drugs over the Internet. Pharmacom wanted Hanny to au thorize prescriptions to its Internet customers. Hanny questioned the business's legality and consulted an attorney. The attorney, although disclaiming any specializedknowledge about Internet prescriptions, also expressed doubt about the business's legitimacy. Despite his initial misgivings, and his attorney's doubts, Hanny began wo rking for Pharmacom in early 2004. Hanny did not seek additional advice from an attorney more familiar with the Internet prescription business.

Pharmacom's business model was simple. The company sponsored a website that allowed customers to order controlled substances over the Internet. The Internet customers selected and paid for the contro lled substances online using credit or debit cards. Once the customers' payments were verified, the orders were sent to participating physicians, such as Hanny, for review. To authorize the sale, the physician would add his electronic signature to the order. The physicians were not required to physically examine the patients as part of their order review. After the electronic order was approved by a physician, the order would then be sent to a participating pharmacy to fill the prescrip tion. While working for Pharmacom, Hanny authorized over 2,400 prescriptions. Hanny kept a portion of each sale, earning approximately $14,600 for his services. During his time with Pharmacom, Hanny never examined any of the patients w ho sought prescriptions. Law enforcement became aware of Pharmacom's operations and shut down the company in 2004.2 Jive also operated under the na mes Pill Works and Pill Network.
-3- After Pharmacom ceased operations , Hanny began working for Jive, 2another company that illegally sold prescription drugs over the Internet. Hanny's responsibilities at Jive were very similar to his responsibilities at Pharmacom; Hanny approved prescription requests based on a questionnaire completed by the customer. Hanny never reviewed the customers' medical records. While working at Jive, Hanny authorized the dispensing of at least 110,110 dosage units of Schedule III controlled substances and at least 880,590 dosage units of Schedule IV controlled substances. For his services to Jive, Hanny earned approximately $42,700.

In January 2005, the Missouri Board of Medicine contacted Hanny and informed him that his actions as a Jive employee, as it related to Missouri customers, constituted the illegal practice of medicine in Missouri. The letter demanded that Hanny cease and desist, but Hanny disregarded the communication and continued prescribing for Jive until April 2005.

The United States charged Hanny with conspiring to distribute controlled substances outside the course of normal medical practice and engaging in a monetary transaction over $10,000 derived from the pro ceeds of this activity in violation of 21 U.S.C. § 846 and 18 U.S.C. § 1957 respectively. Hanny pleaded guilty to two counts of conspiracy to distribute and onecount of engaging in an illegal monetary transaction. After accepting his guilty plea, the district court sentenced Hanny to 33 months' imprisonment.

In reaching Hanny's sentence, the court first determined Ha nny's offense level for the drug charges. The court looked to U.S.S.G. § 2D1.1 and app lied a base offense level of 20. The court dete rmined that Hanny's drug offense involved the distribution of a controlled substance through mass-marketing by means of an interactive computer service and, therefore, applie d a two-level enhan cement to Hanny's base3 None of these adjustments ar e at issue in this appeal.

4 Subsection (b)(5) has not been construed by an appellatecourt. However, section 2B1.1 contains a similar enhanc ement for theft and fraud crimes. Under
-4- offense level under § 2D1.1(b)(5). Afte r adding the money laundering offense and applying several other adjustments, 3 both upward and downward, the court set Hanny's total offense level at 19 and his criminal history classification at Category I, making Hanny's Guidelines range 30 to 37 m onths' imprisonment. The court departed downward from the advisory range after the government filed a substantial assistance motion under U.S.S.G. § 5K1.1, resulting in a final advisory Guidelines range of 27 to 33 months. The court heard arguments regarding the appropriateness of granting a variance from the Guidelines but found that no § 3553(a) factor warranted a variance. After denying the variance, th e court sentenced Hanny to 33 months' imprisonment.

Hanny appeals the applicability of the § 2D1.1(b)(5) upward adjustment that set his initial offense level. He argues that had the adjustme nt not been applied his predeparture Guidelines range would have b een 27 to 33 months, and the court would have sentenced him to a shorter senten ce after granting the 5K1.1 departure.

II. Discussion The sole issue raised by this appeal is whether the record evidence supports the district court's application of U.S.S.G. § 2D1. 1(b)(5). We review the district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Holthaus , 486 F.3d 451, 454 (8th Cir. 2007).

In establishing a base offense level, the Guidelines require a two-level enhancement if the defendant's crime in volved the distribution of any controlled substance "through mass-marketing by means of an interactive computer service." U.S.S.G. § 2D1.1(b)(5). 4 Neither we nor any other appellate court have had thesubsection 2B1.1(b)(2)(A)(ii), a court mustapply a two-level enhancement if the defendant committed a property offense through "mass-marketing." Mass-marketing is defined, in part, as "a plan, program, promotion, or campaign, that is conducted through solicitation by . . . the Internet . . . to induce a large number of persons to . . . purchase goods or services." U.S.S.G. § 2B 1.1(b)(2)(A)(ii), app. n.4. Hanny cites to United States v. Pirello , 255 F.3d 728 (9th Cir. 2001), a ddressing § 2B1.1(b)(2)(A)(ii) to support his contention that to prove solicitation, the government must show the defendant affirmatively placed an ad on the In ternet or sent spamemails to promote the sale of the illegal items. However, this is not the holding of Pirello ; in fact Pirello did not address what facts are necessary before solicitation is proven. However, Pirello is helpful to the present case in that it provides an example of a defendant who is guilty of solicitation by the Internet. In Pirello , the defendant defrauded purchasers by placing a classified ad on the Internet o ffering goods for sale th at he did not own. Id . at 730. The court stated that "by placing a classified ad on the Internet, Pirello was able to solicit funds instantaneously and continuously from over 200 million individuals worldwide." Id . at 731.
-5- occasion to address this Guidelines secti on; however, the application notes to the Guidelines provide some guidance to its use. The application notes define "massmarketing by means of interactive computer service" as "the solicitation, by means of an interactive computer service, of a large number of persons to induce those persons to purchase a controlled substance." U.S.S.G. § 2D1.1(b)(5), cmt. n.22. "Interactive computer service" means "any information service, system, or access software provider that provides or enables comput er access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offe red by libraries or educational institutions." See U.S.S.G. § 2D1.1(b)(5), cmt. n.22; 47 U.S.C. § 230(f)(2).

Hanny's contention is that Jive's internetactivities do not justify an application of subsection (b)(5). It is undisputed that the trial court properly imputed Jive's actions to Hanny when considering the application of this subsection. As a conspirator, Hanny is accountable for the actions of his co-c onspirators at Pharmacom and Jive who illegally sold controlled substances. United States v. Brown , 148 F.3d 1003, 1008 (8th-6- Cir. 1998) (stating that a defendant convi cted of conspiracy is properly held accountable for all reasonably foreseeable acts and omissions of any co-conspirator taken in furtherance of that cons piracy); U.S.S.G. § 1B1.3(a)(1)(B).

This appeal turns on the interpretation of U.S.S.G. § 2D1.1(b)(5). We do not find the Guidelines ambiguous. The applicati on notes provide examples of scenarios that do and that do not qualif y as solicitation for purposes of § 2D1.1(b)(5). The notes clearly state that subsection (b)(5) applies to a defendant who " operated a web site to promote the sale" of a controlled substan ce. U.S.S.G. § 2D1.1(b)(5), cmt. n.22. The example in note 22 makes clear that the subsection does not apply if the only use of the interactive computer service is for th e parties to communicate with each other in furtherance of the offense. Id

. Hanny interprets the first example in the application notes as requiring affirmative proof that Jive used the webs ite to promote the sale of the controlled substance. According to Hanny's interpretation, subsection (b)(5) only applies in cases where the government shows that a defendant placed an ad or sent emails to generate sales. Hanny argues that any other interpretation would render the use of the words "promote" and "solicit" in the mass- marketing definition superfluous. Hanny's argument mainly rests on the idea that each wo rd in a sentence should be given effect. Hanny also relies on the dictionary definitions of "solicitation."

The government, on the other hand, asserts that the application notes support its interpretation of the Guidelines. The gove rnment contends that interactive websites that are generally accessible to the public, by their very nature, promote the website's subject matter. According to the government , this subsection exists to combat the increasing role interactive computer servi ces play in the realm of drug trafficking.

Subsection (b)(5) was added to the Gu idelines in 2004 after the Sentencing Commission "identified use of an interactiv e computer service as a tool providing-7- easier access to illegal products." U.S.S.G. app. C., amend. 667, reason for amend. ¶ 2. According to the Sentencing Commission, an interactive computer service provides criminals an easier method to market their products and makes it mo re difficult for law enforcement to uncover the crime and punish the offenders. Id.

We hold that the government's proof sufficiently established a factual basis for imposition of the enhancement in this case. A public, inte ractive website reachable by an ordinary web search engine is, at the least, a billboard on the information superhighway. As operated, th e Jive site not only allowe d the general public to read the products offered for sale, but the site also allowed visitors to actively shop for, select, and purchase controlled substances. Operation of an illegal internet pharmacy of this variety through an interactive we bsite is sufficient c onduct to warrant the application of U.S.S.G. § 2D1.1(b)(5).

We are careful, however, to note that the mere use of a website is not sufficient to trigger this enhancement. As correc tly pointed out by Hanny, a person "solicits" when he entices another to take an acti on. The operation of an interactive website devoted to the illegal sale of controlled s ubstances that is freely accessible to all members of the public is sufficiently en ticing to constitute solicitation. Offering controlled substances for sale was not a minor part of Ji ve's website. It was the very reason the site existed. Under these facts, we cannot say that the district court erred in applying the two-level mass-marketing e nhancement to Hanny's base offense level.

III. Conclusion Accordingly, we affirm the judgment of the district court.

______________________________