FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-10037 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00976-SMM

JEFFREY H. FEINGOLD,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, District Judge, Presiding

Argued and Submitted

April 4, 2006—San Francisco, California

Filed July 21, 2006

Before: Alfred T. Goodwin, Betty B. Fletcher, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge B. Fletcher

8017
COUNSEL

Michele R. Moretti, Lake Butler, Florida, for the appellant. 

Paul Charlton, United States Attorney, John Joseph Tuchi,

Deputy Appellate Chief, Linda C. Boone, Assistant United

States Attorney, Phoenix, Arizona, for the appellee. 

OPINION

B. FLETCHER, Senior Circuit Judge: 

Under the Controlled Substances Act (CSA), it is unlawful

for “any person” knowingly or intentionally to distribute or

dispense a controlled substance. 21 U.S.C. § 841(a). Although

the CSA makes exceptions to this prohibition for certain individuals who are registered “practitioners” under the Act, such

as physicians and pharmacists, see 21 U.S.C. §§ 821-23, the

Supreme Court has held that these practitioners are still subject to criminal prosecution “when their activities fall outside

the usual course of professional practice.” United States v.

Moore, 423 U.S. 122, 124 (1975); see also 21 C.F.R.

§ 1306.04 (providing that a practitioner “shall be subject to

the penalties . . . relating to controlled substances” unless the

prescriptions he writes are “issued for a legitimate medical

purpose . . . [and he is] acting in the usual course of his professional practice”). Thus, a physician remains criminally liable when he ceases to distribute or dispense controlled

substances as a medical professional, and acts instead as a

“pusher.” Moore, 423 U.S. at 138, 143. 

Dr. Jeffrey Feingold, a naturopathic physician licensed by

the State of Arizona, was convicted on 185 counts of illegally

UNITED STATES v. FEINGOLD 8021
distributing controlled substances, in violation of 21 U.S.C.

§ 841(a). He contends that his conviction is constitutionally

infirm due to improperly admitted testimony and erroneous

jury instructions. The thrust of both of these objections is that

the district court permitted the jury to convict him upon finding that he was merely an incompetent doctor, rather than

upon the necessary finding that his conduct was so egregious

as to render him criminally liable. He also argues that his sentence is invalid because the district court improperly relied on

facts not found by the jury and because the district court

denied his request for a two-level reduction in his offense

level. 

Although we hold that Dr. Feingold’s arguments are without merit, we vacate his sentence and remand for resentencing

pursuant to United States v. Beng-Salazar, No. 04-50518 (9th

Cir. July 6, 2006). 

I.

Dr. Feingold graduated in 1976 from the National College

of Naturopathic Medicine and, after completing an internship

and residency, began his career in Philadelphia. In 1990, he

moved to Arizona, where he later opened his own practice. In

2000, the State of Arizona granted naturopathic physicians

authority to prescribe Schedule II, III, IV, and V controlled

substances. In August of 2002, Arizona curtailed this authority, prohibiting naturopathic physicians from prescribing

Schedule II drugs, with the exception of morphine. Dr. Feingold obtained from the Drug Enforcement Agency (DEA) the

necessary certification to prescribe controlled substances. The

prescriptions written by him pursuant to this certification

became the basis for a 185-count indictment. The government

alleged that Dr. Feingold abused his status as a licensed practitioner to distribute controlled substances outside the course

of his professional practice. 

At trial, the government presented evidence from several of

Dr. Feingold’s so-called patients. Their testimony against him

8022 UNITED STATES v. FEINGOLD
overwhelmingly demonstrated his disregard for proper prescribing practices. For example, several patients testified that

they received prescriptions from Dr. Feingold even though he

had never physically examined them and even though he

never recorded the medical basis for prescribing these controlled substances in his patients’ medical charts. Other

patients testified that he had given them controlled substances

even though he knew that they were recovering drug addicts.

Others testified that they received prescriptions even though

Dr. Feingold had never met with them. Dr. Feingold provided

pills to one patient in exchange for having the patient paint his

house, even though the prescriptions had ostensibly been

issued for the patient’s back pain. The record also indicates

that Dr. Feingold continued to prescribe Schedule II narcotics

even after Arizona had revoked the authority of naturopathic

physicians like him to prescribe them. 

Further, Dr. Feingold prescribed these substances in excess

of the maximum dosages he recommended. In one case, in a

single month he provided twenty-eight prescriptions to one

patient, each for 120 pills — a total of more than 3,000 Oxycodone and Oxycontin pills. In another case, he prescribed as

many as 2,000 pills in a single month, despite the fact that the

recommended maximum dosage would have allowed the consumption of only 186, to a patient who testified that he resold

the pills to others. He liberally provided prescriptions for

Hydrocodone, Percocet, Vicodin, Valium, Oxycontin, Oxycodone, and morphine, sometimes refilling these prescriptions at

intervals of only two days, or even daily. Dr. Feingold also

charged his patients by the number of prescriptions he wrote.

The evidence presented by Dr. Feingold’s “patients” also

included the testimony of two undercover DEA agents who

had obtained prescriptions for controlled substances both for

themselves and for each other. Dr. Feingold issued prescriptions to one of these agents without examining her, and on

one occasion, before he had even met her. At least one of

these prescriptions was written for a Schedule II drug after

UNITED STATES v. FEINGOLD 8023
Arizona had made it illegal for naturopathic physicians to dispense them. Finally, these agents testified that Dr. Feingold

had advised them to refill their prescriptions at a particular

pharmacy because certain other pharmacists had refused to fill

his prescriptions. 

In addition to this evidence, the government presented two

expert witnesses — a naturopathic doctor named Dr. Thomas

Kruzel, and a medical doctor named Dr. Michael Ferrante.

Both experts testified about the standard of care with which

medical professionals generally must comply, and both of

them indicated that Dr. Feingold’s conduct fell far short of

applicable professional standards. For instance, Dr. Kruzel

testified that many of the prescriptions written by Dr. Feingold were “medically unnecessary” and that Dr. Feingold’s

practice of prescribing narcotic drugs without conducting adequate physical examinations or taking his patients’ medical

history was “highly unusual” and “outside the usual course of

naturopathic medicine.” Likewise, Dr. Ferrante testified that

Dr. Feingold’s prescription practices had failed to comply

with generally observed professional guidelines, that Dr.

Feingold had kept inadequate records, and that Dr. Feingold

had prescribed unusually high and frequent doses of narcotic

drugs. In addition, both experts consistently and unambiguously testified that Dr. Feingold’s conduct was outside the

course of usual professional practice and that there was no

legitimate medical purpose for the 185 prescriptions identified

in the indictment. 

In his defense, Dr. Feingold presented as an expert witness

a naturopathic doctor named Dr. Michael Cronin. This expert

initially indicated that he believed a legitimate medical purpose existed for all of Dr. Feingold’s prescriptions and that

Dr. Feingold had issued all of his prescriptions in the goodfaith belief that his patients needed them. He explained that

the prescription of high levels of opioid medications was not

atypical in treating pain. On cross-examination, however, the

expert retracted much of his testimony and admitted that the

8024 UNITED STATES v. FEINGOLD
volume and frequency of most of the prescriptions was probably “excessive” and “outside the usual course of professional

practice and without a legitimate medical reason.” 

Finally, Dr. Feingold testified in his own defense. He

admitted writing all of the prescriptions identified in the

indictment. He also admitted that, in retrospect, the prescriptions he issued were not used for a valid medical purpose, that

he was practicing as an “incompetent” doctor, and that his

method of prescribing controlled substances would be considered “outside the usual course of professional practice.” He

explained, however, that the reason for these excessive prescriptions was that he lacked training in “opioid medication

management” and that he “wasn’t trained to recognize opioid

seekers.” He claimed that he had always issued prescriptions

in the genuine belief that they were necessary to treat his

patients’ legitimate and serious medical conditions. Dr. Feingold insisted that he had been prescribing the drugs in good

faith to help his patients manage their pain and that he had

naively believed them when they told him they needed more

pills. 

The district court instructed the jury that it had to find three

elements in order to convict Dr. Feingold under § 841(a) as a

licensed practitioner: 

First, the government must prove beyond a reasonable doubt that the defendant distributed a controlled substance. . . . 

Second, the government must prove beyond a reasonable doubt that the defendant distributed the controlled substance knowingly and intentionally. . . . 

Third, the government must prove beyond a reasonable doubt that the defendant prescribed or distributed the controlled substance other than for a

UNITED STATES v. FEINGOLD 8025
legitimate medical purpose and not in the usual

course of professional practice. 

In addition, the district court provided the following supplemental instructions: 

A practitioner may not be convicted of unlawful

distribution of controlled substances when he distributes controlled substances in good faith to patients in

the regular course of professional practice. Only the

lawful acts of a practitioner, however, are exempted

from prosecution under the law. A controlled substance is distributed by a practitioner in the usual

course of his professional practice if the substance is

distributed by him in good faith in medically treating

a patient. Good faith is not merely a practitioner’s

sincere intention towards the people who come to

see him, but, rather, it involves his sincerity in

attempting to conduct himself in accordance with a

standard of medical practice generally recognized

and accepted in the country. Thus, good faith in this

context means an honest effort to prescribe for a

patient’s condition in accordance with the standard

of medical practice generally recognized and

accepted in the country. However, practitioners who

act outside the usual course of professional practice

and prescribe or distribute controlled substances for

no legitimate medical purpose may be guilty of

unlawful distribution of controlled substances. 

After deliberation, the jury convicted Dr. Feingold on all

185 counts. The district court calculated the offense level

under the sentencing guidelines as 32, based on the quantity

of drugs illegally prescribed by Dr. Feingold, as well as on its

finding that Dr. Feingold had abused a position of public trust.

The district court sentenced Dr. Feingold to 60 months for

those counts that were subject to a statutory maximum, and to

8026 UNITED STATES v. FEINGOLD
144 months for the counts that were governed by the sentencing guidelines, with all sentences to run concurrently. 

Dr. Feingold now appeals his conviction and his sentence.

II.

Dr. Feingold claims that the district court improperly

allowed expert witnesses to testify about the standard of care

applicable to the distribution of opioid and other drugs. He

argues that their testimony not only misled the jury by claiming a consensus among medical professionals in a field where

none exists, but also was irrelevant and prejudicial because it

prompted the jury to convict him of criminal offenses where

at most he was a negligent doctor. 

[1] We review a district court’s evidentiary rulings for

abuse of discretion. See, e.g., United States v. Alvarez, 358

F.3d 1194, 1205 (9th Cir. 2004). Here, we conclude that the

testimony about the applicable standard of care was relevant

and therefore admissible. We agree with Dr. Feingold’s observation that a violation of the standard of care alone is insufficient to support the criminal conviction of a licensed

practitioner under § 841(a). But we do not agree that evidence

of the governing standard of care is irrelevant or prejudicial.

To the contrary, only after assessing the standards to which

medical professionals generally hold themselves is it possible

to evaluate whether a practitioner’s conduct has deviated so

far from the “usual course of professional practice” that his

actions become criminal. Moore, 423 U.S. at 124. 

[2] Both the Supreme Court and this court have allowed

juries to assess the prevailing standards of care among medical professionals in cases involving the criminal prosecution

of licensed practitioners. See id. at 126 (noting the practitioner’s concession “that he did not observe generally accepted

medical practices”); United States v. Boettjer, 569 F.2d 1078,

1081 (9th Cir. 1978) (noting that the standard for criminal liaUNITED STATES v. FEINGOLD 8027
bility “itself imports considerations of medical legitimacy and

accepted medical standards”). As we explained in Boettjer,

evidence regarding the applicable standard of care is “not

offered to establish malpractice, but rather to support the

absence of any legitimate medical purpose in [the practitioner’s] prescription of controlled substances.” 569 F.2d at 1082.

Knowing how doctors generally ought to act is essential for

a jury to determine whether a practitioner has acted not as a

doctor, or even as a bad doctor, but as a “pusher” whose conduct is without a legitimate medical justification. The district

court therefore did not abuse its discretion in admitting evidence relating to the standard of care.1

III.

Dr. Feingold raises two objections to the jury instructions.

Although we review the “precise formulation” of jury instructions only for abuse of discretion, we review such instructions

de novo to determine whether they misstate the elements of a

crime. See United States v. Shipsey, 363 F.3d 962, 966 n.3

(9th Cir. 2004). Here, the thrust of Dr. Feingold’s arguments

is that the district court effectively misrepresented the elements of the crime. We therefore review the jury instructions

de novo. 

A.

Dr. Feingold first argues that the instructions permitted the

jury to convict him without an adequate determination of his

mens rea. He argues that, to convict a licensed practitioner

under § 841(a), a jury must look into his subjective state of

1To the extent that the government’s evidence, as Dr. Feingold characterizes it, created the illusion of a consensus among the medical community when no agreement actually exists about the applicable standard of

care, the proper response to this problem was for him to present evidence

(as he actually did at trial) of the purported disputes within the medical

community, not for the trial court to exclude any and all evidence relating

to the standard of care. 

8028 UNITED STATES v. FEINGOLD
mind and determine that he intended to act outside the course

of his professional practice. He contends that his conviction

is invalid because the jury instructions did not require the jury

to do so in his case. See, e.g., United States v. Nguyen, 73

F.3d 887, 894-95 (9th Cir. 1995) (reversing a conviction

where the jury instructions failed to require a finding of

intent). 

We agree with Dr. Feingold’s contention that a practitioner

who acts outside the usual course of professional practice may

be convicted under § 841(a) only if he does so intentionally.

If a practitioner’s distribution of controlled substances

becomes illegal only by virtue of the fact that his actions are

“outside the usual course of professional practice,” Moore,

423 U.S. at 124, it follows that the practitioner must have

deliberately acted in this fashion in order for him to be convicted of a crime. See Morissette v. United States, 342 U.S.

246, 250 (1952) (“The contention that an injury can amount

to a crime only when inflicted by intention is no provincial or

transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose

between good and evil.”). As we emphasized in United States

v. Rosenberg, 515 F.2d 190 (9th Cir. 1975), “the jury [must]

look into [a practitioner’s] mind to determine whether he prescribed the pills for what he thought was a medical purpose

or whether he was passing out the pills to anyone who asked

for them.” Id. at 197. 

[3] Simply put, to convict a practitioner under § 841(a), the

government must prove (1) that the practitioner distributed

controlled substances, (2) that the distribution of those controlled substances was outside the usual course of professional

practice and without a legitimate medical purpose, and (3)

that the practitioner acted with intent to distribute the drugs

and with intent to distribute them outside the course of professional practice. In other words, the jury must make a finding

of intent not merely with respect to distribution, but also with

UNITED STATES v. FEINGOLD 8029
respect to the doctor’s intent to act as a pusher rather than a

medical professional. Here, Dr. Feingold contends that the

district court’s instructions relieved the jury of its burden to

make this additional finding of intent. 

[4] Contrary to Dr. Feingold’s assertion, however, we are

satisfied that the district court’s instructions did require the

jury to find that he intentionally acted outside the usual course

of professional practice. Although the district court did not

explicitly use the word “intent” in instructing the jury on this

aspect of the offense — that the defendant “prescribed or distributed the controlled substance other than for a legitimate

medical purpose and not in the usual course of professional

practice” — the instructions as a whole made clear that the

jury had to make a finding about Dr. Feingold’s state of mind.

See United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir.

2000) (“A single instruction to a jury may not be judged in

artificial isolation, but must be viewed in the context of the

overall charge.”). 

[5] In its supplemental instructions, the district court

informed the jury that a practitioner “may not be convicted of

unlawful distribution of controlled substances when he distributes controlled substances in good faith to patients in the

regular course of professional practice.” These supplemental

instructions further stated that “[a] controlled substance is distributed by a practitioner in the usual course of his professional practice if the substance is distributed by him in good

faith in medically treating a patient.” The district court

explained that good faith “involves his sincerity in attempting

to conduct himself in accordance with a standard of medical

practice generally recognized and accepted in the country.”

Finally, the district court instructed that “good faith in this

context means an honest effort to prescribe for a patient’s condition.” The supplemental instructions made no fewer than

four references to Dr. Feingold’s state of mind, all of them in

connection with instructions regarding the professional competence of a licensed practitioner. Admittedly, the instructions

8030 UNITED STATES v. FEINGOLD
would have been clearer if they had stated that “the government must prove beyond a reasonable doubt that the defendant intentionally prescribed or distributed the controlled

substance other than for a legitimate medical purpose and not

in the usual course of professional practice.” Nonetheless,

viewed in their entirety, the instructions compelled the jury to

consider whether Dr. Feingold intended to distribute the controlled substances for a legitimate medical purpose and

whether he intended to act within the usual course of professional practice. The verdict represents the jury’s conclusion

that he did not. We therefore find no error in the jury instructions regarding Dr. Feingold’s criminal intent.

B.

Dr. Feingold also claims that the jury instructions were

erroneous because they misrepresented the standard for criminal liability. Specifically, he argues that the instructions conflated the higher standard for criminal liability under § 841(a)

— whether a practitioner’s actions “fall outside the usual

course of professional practice,” Moore, 423 U.S. at 124 —

with the standard for civil malpractice. As noted above, the

district court instructed the jury that Dr. Feingold had to make

“an honest effort to prescribe for a patient’s condition in

accordance with the standard of medical practice generally

recognized and accepted in the country.” Similarly, the court

instructed that good faith “involves [Dr. Feingold’s] sincerity

in attempting to conduct himself in accordance with a standard of medical practice generally recognized and accepted in

the country.” Dr. Feingold argues that, by using the professional “standard of care” as a benchmark in the jury instructions, the district court allowed the jury to convict simply

upon finding that he had been a negligent doctor. 

Initially, we reiterate that the district court’s instructions

required a finding of intent, not merely a finding of malpractice. Thus, while it is true that the district court’s instructions

referred to a national standard of care, at a minimum the

UNITED STATES v. FEINGOLD 8031
instructions required the jury to find that Dr. Feingold had

intentionally violated that standard. Dr. Feingold’s appeal

thus presents the question of whether a practitioner’s conviction under 21 U.S.C. § 841(a) is valid if it rests only on a finding of intentional malpractice, or whether a jury must find that

the doctor intentionally engaged in even more egregious conduct. Similarly stated: can a defendant who intentionally

exceeds a generally recognized “standard of medical practice”

still be engaged in “the usual course of professional practice,”

Moore, 423 U.S. at 124, such that he could escape criminal

liability? The question is a difficult and important one, and it

implicates the conduct of any health care professional whose

judgment about the appropriate standard of medical care may

conflict with what a jury determines to be the generally

accepted standard. The threat, Dr. Feingold argues, is that

doctors could be prosecuted and perhaps convicted as criminals whenever the Attorney General disapproves of a course

of treatment, or whenever they step outside of conventional

medical protocols in order to provide some sort of special

treatment for uniquely needy patients. 

[6] Significantly, both the Supreme Court and this Circuit

have previously approved jury instructions that refer to a

national standard of care. In Moore, for example, the Supreme

Court implicitly approved instructions that had required the

jury to find that the practitioner had prescribed controlled substances “other than in good faith for detoxification in the

usual course of a professional practice and in accordance with

a standard of medical practice generally recognized and

accepted in the United States.” 423 U.S. at 139. In Boettjer,

we upheld a conviction where the district court had required

the jury to find that the practitioner had acted “other than in

good faith for a legitimate medical purpose and in accordance

with the medical standards generally recognized and accepted

in the medical profession.” 569 F.2d at 1081. And in United

States v. Hayes, 794 F.2d 1348 (9th Cir. 1986), we upheld a

conviction obtained after the district court had instructed the

jury to find that the defendant had acted in good faith, which

8032 UNITED STATES v. FEINGOLD
it defined, as did the district court in this case, to mean that

the practitioner had made “an honest effort to prescribe for a

patient’s condition in accordance with the standard of medical

practice generally recognized and accepted in the country.”

Id. at 1351. These cases thus suggest that it is proper to

instruct a jury that it may compare the defendant’s conduct to

an applicable standard of care. 

Yet these cases have also cautioned that a district court may

impermissibly lower the standard for criminal liability by

instructing the jury to determine whether a practitionerdefendant has complied, or attempted to comply, with the

standard of care. Indeed, a careful reading of these cases

reveals that we have previously expressed concern about

instructions related to the standard of care. In Hayes, we

observed that the district court’s reference to the standard of

medical care was potentially confusing and that “more precise

language could have been used.” Id. at 1352. We nonetheless

affirmed the practitioner’s conviction because, after viewing

the jury instructions in their entirety, “we fail[ed] to see how

the jury could [have] interpret[ed] the instructions as permitting a finding of guilt based on mere negligence.” Id. Likewise, in Boettjer, we observed that the jury instructions were

subject to several possible interpretations. We noted that one

plausible interpretation of the instructions would have permitted conviction “merely upon a showing of malpractice,” and

we held that “to the extent the given instruction countenanced

this result, it was deficient.” 569 F.2d at 1082. We stated in

Boettjer that “we would not hold forth the charge given in this

case as a model for emulation, nor would we encourage its

verbatim proliferation.” Id. at 1083. Finally, the Supreme

Court in Moore was careful to emphasize that the defendant

in that case had so wantonly ignored the basic protocols of the

medical profession that “he acted as a large-scale ‘pusher’ —

not as a physician.” 423 U.S. at 143. The Court further

described § 841(a) as prohibiting “the significantly greater

offense of acting as a drug ‘pusher.’ ” Id. at 138. These statements suggest that the Moore Court based its decision not

UNITED STATES v. FEINGOLD 8033
merely on the fact that the doctor had committed malpractice,

or even intentional malpractice, but rather on the fact that his

actions completely betrayed any semblance of legitimate

medical treatment. 

[7] We hold that an instruction is improper if it allows a

jury to convict a licensed practitioner under § 841(a) solely on

a finding that he has committed malpractice, intentional or

otherwise. Rather, the district court must ensure that the

benchmark for criminal liability is the higher showing that the

practitioner intentionally has distributed controlled substances

for no legitimate medical purpose and outside the usual

course of professional practice. 

Our holding is supported by the Supreme Court’s decision

in Moore, which implicitly approved an instruction that

required the jury to find “beyond a reasonable doubt that a

physician, who knowingly or intentionally, did dispense or

distribute [methadone] by prescription, did so other than in

good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical

practice generally recognized and accepted in the United

States.” Moore, 423 U.S. at 138-39 (alterations in original).

The district court’s instruction in Moore indicates that the jury

could convict under § 841(a) if the government proved that

the practitioner intentionally prescribed drugs for no legitimate medical purpose. Conversely, to avoid conviction, the

practitioner could have demonstrated either that he had complied with a generally recognized standard of care or that he

had prescribed the drugs in good faith for a legitimate medical

purpose. Our reading of the jury instructions approved by the

Moore Court, which unquestionably imposed a higher burden

on the government than proving deliberate malpractice, is also

in accord with the federal regulations governing licensed

practitioners. See 21 C.F.R. § 1306.04. 

[8] Moreover, our holding is consistent with the law in several of our sister circuits, which have emphasized that the

8034 UNITED STATES v. FEINGOLD
standard for criminal liability under § 841(a) requires more

than proof of a doctor’s intentional failure to adhere to the

standard of care. See United States v. Tran Trong Cuong, 18

F.3d 1132, 1137 (4th Cir. 1994) (noting that a criminal conviction “requires more” than a showing of malpractice, and

defining the standard as “proof beyond a reasonable doubt

that the doctor was acting outside the bounds of professional

medical practice, as his authority to prescribe controlled substances was being used not for treatment of a patient, but for

the purpose of assisting in the maintenance of a drug habit or

of dispensing controlled substances for other than a legitimate

medical purpose, i.e. the personal profit of the physician”);

United States v. Stump, 735 F.2d 273, 276 (7th Cir. 1984)

(holding that evidence was sufficient to support a conviction

where the doctor’s pattern of prescribing drugs “could not

possibly be consistent with legitimate medical treatment”);

United States v. Bartee, 479 F.2d 484, 489 (10th Cir. 1973)

(holding that evidence was sufficient to support a conviction

where the doctor “was not acting for a legitimate medical purpose”). Instead, a jury must find that a doctor has intentionally

prescribed controlled substances for no legitimate medical

purpose. A practitioner becomes a criminal not when he is a

bad or negligent physician, but when he ceases to be a physician at all.

2

2We do not suggest that the federal government lacks authority to circumscribe the scope of treatment that might plausibly be considered

within “the usual course of professional practice.” Where the federal government has legitimately and expressly limited the ways in which practitioners may employ controlled substances, a practitioner may be

prosecuted for exceeding such federal restrictions. See Moore, 423 U.S. at

144 (noting explicit congressional authorization for the then-secretary of

Health, Education, and Welfare to define the boundaries of permissible

experimentation with controlled substances for the purpose of treating

drug addiction). Here, we express no opinion on the validity of any federal

effort to define what constitutes a legitimate medical practice with respect

to the treatment of pain with opioid drugs. See Gonzales v. Oregon, 126

S. Ct. 904, 925 (2005) (holding that the Attorney General lacked authority

to declare illegitimate a medical standard for care and treatment of terminally ill patients that was specifically authorized under state law). 

UNITED STATES v. FEINGOLD 8035
[9] Nonetheless, we reaffirm that it is appropriate in cases

such as this for the jury to consider the practitioner’s behavior

against the benchmark of acceptable and accepted medical

practice. Just how that benchmark is expressed to the jury —

here, the district court defined that benchmark in terms of the

“standard of medical practice generally recognized and

accepted in the country” — is a matter within the district

court’s discretion.3See United States v. Franklin, 321 F.3d

1231, 1240-41 (9th Cir. 2003) (“We review for abuse of discretion a district court’s formulation of jury instructions, considering ‘the instructions as a whole, and in context.’ ”

(quoting United States v. Stapleton, 293 F.3d 1111, 1114 (9th

Cir. 2002))). We emphasize, however, that a district court

may mislead a jury if its instructions referring to an applicable

standard of care suggest that a breach of that standard alone

is sufficient to sustain a criminal conviction. 

[10] In this case, the instructions adequately stated the standard for criminal liability. Although the district court’s references to the standard of care could have been articulated more

3The Supreme Court’s decision in Moore authorized prosecution of

licensed practitioners who act “outside the usual course of professional

practice.” 423 U.S. at 124. The term “professional practice” implies at

least that there exists a reputable group of people in the medical profession

who agree that a given approach to prescribing controlled substances is

consistent with legitimate medical treatment. Accord 21 C.F.R. § 1306.04

(requiring prescriptions to be “issued for a legitimate medical purpose”).

As the Fifth Circuit has stated, “[o]ne person’s treatment methods do not

alone constitute medical practice.” United States v. Norris, 780 F.2d 1207,

1209 (5th Cir. 1986). Although the district court’s benchmark of a “standard of medical practice generally recognized and accepted in the country”

may be overly broad given the diversity of views that may exist within the

medical profession about the propriety of any given course of medical

treatment, we nonetheless consider the instruction appropriate in light of

the court’s other instructions that Dr. Feingold could not be convicted if

he distributed the controlled substances “in good faith in medically treating a patient” or distributed them for a “legitimate medical purpose.” See

United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000) (“A single

instruction to a jury may not be judged in artificial isolation, but must be

viewed in the context of the overall charge.”). 

8036 UNITED STATES v. FEINGOLD
clearly, the instructions informed the jury that “[a] practitioner may not be convicted of unlawful distribution of controlled substances when he distributes controlled substances

in good faith to patients in the regular course of professional

practice.” Moreover, in its description of the elements, the

district court instructed the jury that “the government must

prove beyond a reasonable doubt that the defendant prescribed or distributed the controlled substance other than for

a legitimate medical purpose and not in the usual course of

professional practice.” These instructions correctly articulated

the standard for criminal liability under § 841(a). 

Further, in this case, as in Moore, Boettjer, and Hayes, any

imprecision in the jury instructions as to the standard for

criminal liability was harmless beyond a reasonable doubt.

See, e.g., Rose v. Clark, 478 U.S. 570, 579-80 (1986) (conducting harmless error review of an instruction that misstated

an element of the charged crime); United States v. RubioVillareal, 967 F.2d 294, 296 n.3 (9th Cir. 1992) (en banc)

(same). The evidence against Dr. Feingold was overwhelming. He prescribed drugs to people whom he knew to be

addicts, to people whom he had never examined, to people

whom he had never met, and to undercover law enforcement

officials who did little more than tell him they wanted narcotics. He continued to prescribe Schedule II narcotics even after

the state of Arizona had made it illegal for naturopathic physicians to do so, and after local pharmacists had specifically

refused to fill some of his prescriptions because he lacked

authorization to write them. Further, he dispensed drugs in

quantities that, according to the government’s experts, probably would have killed his patients, and certainly would have

destroyed their livers, if they had actually consumed the drugs

in the amounts he prescribed. 

[11] Moreover, Dr. Feingold repeatedly admitted during his

testimony that his practice of prescribing controlled substances was “outside the course of professional practice.” His

defense at trial was not that he earnestly adhered to some

UNITED STATES v. FEINGOLD 8037
alternative, but nonetheless medically legitimate standard of

care; rather, he claimed that he was an incompetent doctor

who was honestly trying to help his patients manage pain,

didn’t know that they were abusing the drugs due to his lack

of training about the use of opioids, and never intended to

flout professional protocol. Dr. Feingold’s jury rejected this

argument, just as the jury did in Moore. See 423 U.S. at 143

(noting that the jury disbelieved the practitioner’s defense that

he was “experimenting with a new . . . theory of detoxification”). On this record, we hold that any reasonable jury would

have found that Dr. Feingold intentionally acted outside the

usual course of professional practice. We therefore affirm his

convictions.

IV.

Dr. Feingold raises several objections to his 144-month

sentence. First, he argues that the district court calculated his

offense level under the then-mandatory sentencing guidelines

based on judge-found facts, in violation of the Sixth Amendment. See United States v. Booker, 543 U.S. 220, 244 (2005).

Second, he argues that the district court improperly denied his

request for a two-point reduction in his offense level pursuant

to U.S.S.G. § 2D1.1(b)(7). Finally, he argues that he is entitled to resentencing because his sentence was imposed under

the district court’s erroneous assumption that the sentencing

guidelines were mandatory. See United States v. BengSalazar, No. 04-50518 (9th Cir. July 6, 2006). 

[12] We reject Dr. Feingold’s argument that his sentence is

the product of constitutional error. At sentencing, the district

court imposed two sentence enhancements — one because Dr.

Feingold abused a position of public trust, see U.S.S.G.

§ 3B1.3, and the other because of the amount of drugs he illegally distributed, see U.S.S.G. § 2D1.1(c)(5). Both of these

enhancements were based on facts that were admitted by the

defendant and implicit in the jury’s verdict. The first increase

in Dr. Feingold’s offense level was based on his admission

8038 UNITED STATES v. FEINGOLD
that he distributed the drugs in question under the aegis of

being a licensed naturopathic physician. See United States v.

Barnes, 125 F.3d 1287, 1292 (9th Cir. 1997) (“[A]buse of the

fundamental trust between doctor and patient is precisely the

sort of behavior to which section 3B1.3 is directed.”). The

second enhancement was properly based on Dr. Feingold’s

admission at trial that he actually prescribed the quantities of

drugs alleged in the indictment. See United States v. LabradaBustamante, 428 F.3d 1252, 1261 (9th Cir. 2005). Thus, as

the district court found, because Dr. Feingold admitted the

facts necessary to calculate his sentence enhancements, there

was no Sixth Amendment violation. Booker, 543 U.S. at 244

(reiterating that the Sixth Amendment does not preclude the

imposition of additional punishment on the basis of facts “admitted by the defendant”); see also United States v. George,

420 F.3d 991, 1001 (9th Cir. 2005). No remand is necessary

on constitutional grounds. 

[13] We also reject Dr. Feingold’s argument that the district

court erroneously denied his request for a reduction in his

offense level under U.S.S.G. § 2D1.1(b)(7), which was then

codified under subsection (b)(6). That guidelines provision —

which incorporates by reference the criteria set forth in the socalled “safety valve” provision of the guidelines, see U.S.S.G.

§ 5C1.2(a) — provides for a two-point reduction in the

offense level of defendants who meet certain requirements

(non-violent offender, first-time offense, low-level participant, etc.). Dr. Feingold argues, and the government concedes, that the district court was mistaken when it held that he

was ineligible for the reduction because his offenses did not

carry a mandatory minimum. We agree, and we join our sister

circuits in observing that a two-point reduction under this provision is available to criminal defendants regardless of

whether their offense carries a mandatory minimum. See, e.g.,

United States v. Osei, 107 F.3d 101, 104-05 (2d Cir. 1997);

United States v. Warnick, 287 F.3d 299, 304 (4th Cir. 2002);

United States v. Leonard, 157 F.3d 343, 345-46 (5th Cir.

1998); United States v. Mashek, 406 F.3d 1012, 1018-20 (8th

UNITED STATES v. FEINGOLD 8039
Cir. 2005); United States v. Mertilus, 111 F.3d 870, 873-74

(11th Cir. 1997); United States v. Plunkett, 125 F.3d 873, 874

(D.C. Cir. 1997); see also U.S.S.G. § 2D1.1 cmt. 21 (“The

applicability of [the reduction] shall be determined without

regard to whether the defendant was convicted of an offense

that subjects the defendant to a mandatory minimum term of

imprisonment.”). 

[14] The district court, however, also cited an alternative

basis for its decision. Specifically, it found that the reduction

was “not . . . applicable in this case” because Dr. Feingold had

not met the last criterion for the reduction, in that he had not

“truthfully provided to the government all the information he

has concerning the offense.” U.S.S.G. § 5C1.2(a)(5). We hold

that this factual determination by the district court was not

clearly erroneous. See United States v. Cantrell, 433 F.3d

1269, 1280, 1283 (9th Cir. 2006) (holding that “review of the

district court’s application of the Guidelines is the same as it

was under the pre-Booker sentencing regime”); United States

v. Ajugwo, 82 F.3d 925, 929 (9th Cir. 1996) (noting that the

factual determinations relating to a defendant’s eligibility for

the safety valve are reviewed for clear error). Because this

determination provided an independent basis for the district

court’s decision to deny the two-point reduction, any error in

the district court’s original ruling regarding the lack of a mandatory minimum was harmless. 

[15] Finally, we hold that Dr. Feingold is entitled to resentencing under United States v. Beng-Salazar. See Slip op. at

7491-94 (holding that “a defendant who raised an objection in

district court based on the Sixth Amendment holdings of the

Apprendi line of cases preserved his claim that he is entitled

to resentencing under the advisory Guidelines regime”). The

government argues that remand for resentencing is not necessary because the district court provided a lengthy sentencing

memorandum setting forth in detail the reasons for the sentence it imposed. That ruling, however, provides no indication

of what the district court would have done if it had known that

8040 UNITED STATES v. FEINGOLD
the guidelines were advisory. See id. at 7493. Full resentencing is therefore warranted. 

For the foregoing reasons, we AFFIRM Dr. Feingold’s

convictions, we VACATE his sentence, and we REMAND

for resentencing pursuant to Beng-Salazar.

UNITED STATES v. FEINGOLD 8041