Case: 12-14814    Date Filed: 09/16/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14814
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:11-cr-00501-SCB-MAP-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                   versus

JOHN ANTHONY GIANOLI, III,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (September 16, 2013)

Before CARNES, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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      John Anthony Gianoli, III, appeals his conviction for acting outside the

course of professional practice as a physician by distributing Oxycodone, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and (b)(1)(E)(i), arguing that the

jury was improperly instructed. He also challenges his 60 month sentence, arguing

that the sentencing enhancement for abuse of a position of trust was double-

counted and that the district court wrongly admitted non-victim witness testimony

at the sentencing hearing.

                                              I.

      We generally “review jury instructions de novo to determine whether they

misstate the law or mislead the jury to the prejudice of the objecting party.”

United States v. James, 

, 1337 (11th Cir. 2011). But because

Gianoli did not object to them in the district court, we review only for plain error.

See 

the jury that to convict it must find that Gianoli “either

acted outside the usual course of professional practice or acted without legitimate

medical purpose.” Because Gianoli’s indictment charged that he “did knowingly

and intentionally act outside the course of professional practice” by distributing

Oxycodone, he argues that it was error to instruct the jury that it could convict him

for acting without a legitimate medical purpose.




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       Gianoli’s argument is unpersuasive. 1 There was no evidence or argument

presented at trial that would lead the jury to conclude that Gianoli prescribed

Oxycodone knowing it was for no legitimate medical purpose but still acted within

the usual course of the medical profession. Those two things are inconsistent with

each other. And the court’s instructions were consistent with the law. See United

States v. Tobin, 

, 1282 (11th Cir. 2012) (“[A] distribution is

unlawful if “1) the prescription was not for a ‘legitimate medical purpose’ or 2) the

prescription was not made in the ‘usual course of professional practice.’”). The

court did not err—plainly or otherwise—in giving that instruction.

       Gianoli also argues that the district court erred by using a general verdict

form, making it impossible to know under which theory he was convicted.

Gianoli proposed that a general verdict form be given to the jury, and the district

court followed that request. Any error the district court may have made in giving

the jury a general verdict form was therefore invited and cannot be challenged on

appeal. See 

.

                                                    II.

       Gianoli next argues that he was doubly penalized for his position as a

physician because the court applied the two-level enhancement for abuse of a


       1
         It is notable that Gianoli himself introduced the “legitimate medical purpose” language,
requesting that the jury be told that to convict, it must find that he dispensed Oxycodone “other
than for a legitimate medical purpose and not in the usual course of medical practice.”
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position of public trust or use of a special skill, provided for in U.S.S.G. § 3B1.3,

even though his conviction was based on his conduct as a physician. “We review

de novo a district court’s conclusion that the defendant’s conduct justifies the

abuse of trust enhancement.” United States v. Ghertler, 

, 1264 (11th

Cir. 2010).

      Gianoli is correct that the U.S.S.G. § 3B1.3 enhancement cannot be applied

if abuse of trust or skill is included in the base offense level or specific offense

characteristic. U.S.S.G. § 3B1.3; see also United States v. Garrison, 

,

842–843 (11th Cir. 1998). But his contention that his conviction already

incorporates his abuse of his position as a doctor is incorrect. The Controlled

Substances Act states that, except as authorized, it is unlawful for a person to

knowingly or intentionally distribute or dispense a controlled substance. 21 U.S.C.

§ 841(a)(1). That statute applies to anyone who distributes a controlled substance,

not just physicians. Physician defendants are not subject to an increased base

offense level based on their profession and special skills. See U.S.S.G. § 2D1.1(a),

(b). And the application notes state that professionals, including doctors, who used

special skills in the commission of the offense may be subject to an enhancement

under U.S.S.G. § 3B1.3. U.S.S.G. § 2D1.1, cmt. n.8 (Nov. 1, 2011). Accordingly,

it was not plain error to apply the § 3B1.3 enhancement, and we affirm Gianoli’s

sentence.


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                                              III.

      Finally, Gianoli argues for the first time on appeal that the district court

should not have permitted any witnesses to testify at sentencing about his

prescribing drugs to their relatives and neighbors because they were not direct

victims of the misconduct for which Gianoli was convicted. Because he did not

make that argument in the district court, we review only for plain error. United

States v. Garey, 

, 1363 (11th Cir. 2008). Gianoli bases his argument

on the Crime Victims’ Rights Act, which requires that certain persons classified as

crime victims be given notice of and the opportunity to be heard at certain

hearings, including sentencing hearings. 18 U.S.C. § 3771(a), (b). But that act

does not limit the information concerning the background, character, and conduct

of a person convicted of an offense that a court may hear at sentencing. 18 U.S.C

§ 3661. The sentencing judge may conduct a broad inquiry, “largely unlimited”

either as to the kind of information he may consider, or the source from which it

may come. United States v. Tucker, 

, 446, 

, 591 (1972).

Accordingly, the district court did not err—much less plainly err—by permitting

the non-victim witnesses to testify.

      AFFIRMED.




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