# United States Court of Appeals **for the Fifth Circuit**

_____________ No.19-20662
consolidated with No.21-20120 Summary Calendar

_____________ United States of America, Plaintiff—Appellee ,

versus Muhammad Arif, Defendant—Appellant

.

Appeals from the United States District Court for the Southern District of Texas USDC No. 4:17-CR-388-3

Before Smith, Stewart, and Graves, Circuit Judges

. Per Curiam: * Muhammad Arif was convicted by a jury of conspiring to unlawfully distribute controlled substances, in cluding Hydrocodone (also known as Norco) and Carisoprodol (a lso known as Soma), not for a legitimate medical

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 30, 2021 Lyle W. Cayce Clerk Case: 19-20662 Document: 00516149915 Page: 1 Date Filed: 12/30/2021No. 19-20662 c/w No. 21-20120

2 purpose and outside the scope of profe ssional practice. The jury also convicted him of three counts of distribu ting and dispensing Norco and Soma not for a legitimate medical purpose and outside the scope of professional practice, and aiding and abetting. Th e district court sentenced Arif to concurrent 96-month terms of imprisonmen t on all counts, to be followed by a two-year term of supe rvised release. On appeal, Arif asserts that the evid ence is insufficient to support his convictions. Although Arif moved for a judgment of acquittal at the conclusion of the Government’s case-in-chief, he did not renew his motion at the close of all the evidence; this re sults in plain error review on appeal. See United States v. Smith , 878 F.3d 498, 502-03 (5th Cir. 2017). Under the plain error standard, Arif must show an error that is clear or obvious—rather than subject to reasonable dispute—and affects his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). If he makes that showing, this court has th e discretion to correct the error only if it “seriously affects the fairness, in tegrity or public re putation of judicial proceedings.” Id . (internal quotation marks and citation omitted). For insufficient evidence to rise to the level of plain error, there must have been a “manifest mi scarriage of justice.” United States v. Phillips , 477 F.3d 215, 219 (5th Cir. 2007) (int ernal quotations marks and citation omitted); see Smith , 878 F.3d at 503. A manifest miscarriage of justice occurs when “the record is devoid of evidence pointing to gu ilt or contains evidence on a key element of the offense that is so tenuous that a conviction would be shocking.” United States v. Vasquez , 766 F.3d 373, 377 (5th Cir. 2014) (internal quotation marks and citation omitted); see Smith , 878 F.3d at 503. The elements of the offense of conspiring to distribute and dispense controlled substances outsid e the scope of professional practice are: “(1) an Case: 19-20662 Document: 00516149915 Page: 2 Date Filed: 12/30/2021No. 19-20662 c/w No. 21-20120

3 agreement by two or more persons to un lawfully distribute or dispense a controlled substance outsid e the scope of professional practice and without a legitimate medical purpose; (2) the defendant's knowledge of the unlawful purpose of the agreem ent; and (3) the defendant's willful participation in the agreement.” United States v. Oti , 872 F.3d 678, 687 (5th Cir. 2017). In order to convict Arif of the su bstantive offenses, the Government was required to prove that Arif (1) distributed or di spensed a controlled substance (or aided and abetted such acts), (2) acted know ingly or intentionally, and (3) did so other than for a legitimate medical purpose or outside the usual course of professional practice. See United States v. Evans , 892 F.3d 692, 703 (5th Cir. 2018); 18 U.S.C. § 2(a). Arif argues that the evidence is in sufficient to support his convictions because it fails to show th at he knew that the pres criptions written for Norco and Soma lacked a legitimate purpose, or that the prescriptions were being provided outside the course of professional practice. Arif concedes that he received some medical training in Pakistan , but he argues that the record does not show that he was aware of customary pain management policies in the United States. He contends that the record shows that he operated at the direction of a doctor and that treating patients with Norco and Soma was the standard practice of doctors at the clin ic where he was employed. As to the three substantive counts, Arif raises the argument that, because he was a nonregistrant who was not au thorized to dispense controlled substances, he could be convicted only on an aiding and abetting theory, not as a principal. At trial, there was testimony that Arif filled out prescription forms that had been pre-signed by a doctor who worked at the same clinic, that Arif filled out the forms after seeing patients for five to ten minutes, that he did not have a medical license in Texas (a lthough he claimed to have been a doctor in Pakistan), and that he cons istently prescribed both Norco and Case: 19-20662 Document: 00516149915 Page: 3 Date Filed: 12/30/2021No. 19-20662 c/w No. 21-20120

4 Soma. There was also ev idence that Arif had te lephone contact with the drivers who brought patients to the clin ic, and that he knew that the drivers ultimately received the prescriptions wr itten for the patients. Additionally, the Government’s medical expert op ined that there was no medical indication for the combination of Norc o and Soma, because together these drugs are a dangerous combination that involves an increased risk of overdose. The medical expert also test ified that prescriptions for Norco and Soma were outside the scope of profe ssional practice and not for any legitimate medical purpose. Given the foregoing, far from being devoid of evidence, see Vasquez , 766 F.3d at 377, there is ample evidence showing that Arif knowingly and voluntarily joined in a conspiracy to unlawfully distribute and dispense controlled substances not for a legitimate purpose and outside the course of professional practice. See Oti , 872 F.3d at 686-89. As to the three substantive counts, we also conclude that the evidence is sufficient to establish Arif’s guilt. 1 “A conviction for aiding and abetting requires proof that the substantive offe nse occurred and that the defendant (1) associated with the criminal ventur e; (2) purposefully pa rticipated in the crime; and (3) sought by his actions for it to succeed.” United States v. Daniels , 930 F.3d 393, 403 (5th Cir. 20 19) (internal quotation marks and citation omitted); see 18 U.S.C. § 2(a). “Typica lly, the same evidence will support both a conspiracy and an ai ding and abetting conviction.” United States v. Scott , 892 F.3d 791, 799 (5th Cir. 2018) (internal quotation marks omitted).

1 Because we determine that the evidence is sufficient to establish Arif’s guilt on the three substantive counts under an aiding and abetting theory, we do not consider the sufficiency of the evidence as to these counts under other theories of criminal liability. Case: 19-20662 Document: 00516149915 Page: 4 Date Filed: 12/30/2021No. 19-20662 c/w No. 21-20120

5 Here, there was evidence to estab lish that Arif, wh o was medically trained, filled out prescription forms for Norco and Soma on the dates in question, that those forms were signed by a doctor who worked at the same clinic, and that these prescriptions were not for a legitimate medical purpose and were issued outside the scope of professional practice. Because the record is not “devoid of evidence poin ting to guilt” and does not “contain[] evidence on a key element of the offense that is so tenuous that a conviction would be shocking,” the evidence is su fficient under the applicable standard of review. See Vasquez , 766 F.3d at 377.
AFFIRMED. Case: 19-20662 Document: 00516149915 Page: 5 Date Filed: 12/30/2021