IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-20671

UNITED STATES OF AMERICA, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

August 4, 2020

Lyle W. Cayce

Clerk

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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. 

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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 

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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 

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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 

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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 

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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 

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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-ofacquittal motions after a jury verdict or jury discharge and stating “defendant 

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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 

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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 

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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. 

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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. 

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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 

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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 

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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 

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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. 

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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 

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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). 

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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 AfricanAmerican 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.

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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, 

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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.

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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). 

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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”. 

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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 impropercomments 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 nonreversible 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.”).

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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.

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(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). 

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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 

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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-ofdiscretion 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 

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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, 

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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 belowGuidelines 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 

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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. 

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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. 

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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 

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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.

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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.

 Case: 18-20671 Document: 00515514219 Page: 35 Date Filed: 08/04/2020