United States v. Miller , 891 F.3d 1220 ( 2018 )


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  •                                                                            FILED
    United States Court of Appeals
    Tenth Circuit
    June 6, 2018
    PUBLISH                     Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                         No. 16-1231
    JOEL E. MILLER, a/k/a Joel Edward
    Miller,
    Defendant - Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLORADO
    (D.C. No. 1:13-CR-00354-REB-1)
    John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal
    Public Defender, with him on the brief), Denver, Colorado, for Defendant-
    Appellant.
    J. Bishop Grewell, Assistant United States Attorney (Robert C. Troyer, Acting
    United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-
    Appellee.
    Before McHUGH, McKAY, and KELLY, Circuit Judges.
    McKAY, Circuit Judge.
    Defendant Joel Miller, a former small-town doctor, was charged with numerous
    counts of health-care fraud, money laundering, and distributing a controlled substance
    outside the usual course of professional treatment, as well as one count of making a false
    statement in an application he submitted to the Drug Enforcement Administration. The
    jury acquitted him on all of the financial charges as well as several of the drug-
    distribution charges, but found him guilty on seven counts of distributing a controlled
    substance in violation of 21 U.S.C. § 841(a) and one count of making a false statement to
    the DEA in violation of 21 U.S.C. § 843(1)(4)(A). The district court granted Defendant’s
    post-judgment motion for acquittal on one of the controlled-substances counts based on
    an error in the indictment. The court then sentenced him to forty-one months of
    imprisonment on the six remaining distribution counts, plus a consecutive sentence of
    nineteen months on the false-statement count, for a total sentence of sixty months of
    imprisonment. Defendant appeals his convictions and sentence.
    On appeal, Defendant argues that (1) the government medical expert’s testimony
    was not the product of reliable principles reliably applied to the facts of this case and
    accordingly should have been excluded under Rule 702; (2) the indictment was
    duplicitous on four of the six controlled-substances counts because each of these four
    counts included at least two different controlled substances that were prescribed on the
    same date to the same patient; (3) the trial evidence, jury instructions, and prosecutor’s
    closing argument constructively amended the indictment on the false-statement count; (4)
    the false-statement count should not have been submitted to the jury because the
    statement at issue was not false as a matter of law; and (5) the sentence was procedurally
    unreasonable.
    -2-
    Before addressing the merits of any of these arguments, we first pause to explain
    the legal backdrop behind Defendant’s controlled-substance convictions. Under §
    841(a)(1), it is “unlawful for any person knowingly or intentionally” to dispense a
    controlled substance “[e]xcept as authorized by this subchapter.” Medical practitioners
    are authorized to dispense non-schedule I drugs pursuant to 21 U.S.C. § 829(a) and (b).
    However, in order for a medical practitioners’s prescription of controlled substances to be
    considered a lawful prescription under § 829, it “must be issued for a legitimate medical
    purpose by an individual practitioner acting in the usual course of his professional
    practice.” 21 C.F.R. § 1306.04(a). “When this limited statutory authority is exceeded,
    the criminal sanctions of § 841 apply.” United States v. Fellman, 
    549 F.2d 181
    , 182 (10th
    Cir. 1977). Thus, a medical practitioner who prescribes controlled substances may be
    convicted of illegal distribution or dispensing under § 841 “if he acts without a legitimate
    medical purpose or outside the usual course of professional practice.” United States v.
    Nelson, 
    383 F.3d 1227
    , 1233 (10th Cir. 2004).
    To help the jury decide whether this standard for criminal liability has been met,
    “[e]xpert testimony from medical practitioners is of course admissible.” United States v.
    Bartee, 
    479 F.2d 484
    , 488 (10th Cir. 1973). “However, the jury is not bound by such
    expert testimony and may of course consider all of the facts and circumstances
    surrounding the prescribing as related by lay witnesses.” 
    Id. The jury
    is “free to sort out
    all the competing proof: the question [of] what constitutes usual medical practice
    -3-
    remain[s], at all times, within its province.” United States v. Lovern, 
    590 F.3d 1095
    , 1100
    (10th Cir. 2009).1
    With this legal backdrop in mind, we first consider Defendant’s challenge to the
    admission of testimony from the government’s medical expert. “The admission of expert
    testimony is within the discretion of the trial court and will be overturned on appeal only
    when a clear abuse of discretion has occurred.” United States v. Varma, 
    691 F.2d 460
    ,
    463 (10th Cir. 1982). “The district court abuses its discretion if the court’s decision is
    arbitrary, capricious, whimsical or manifestly unreasonable, or when we are convinced
    that the district court made a clear error of judgment or exceeded the bounds of
    permissible choice in the circumstances.” United States v. Chapman, 
    839 F.3d 1232
    ,
    1237 (10th Cir. 2016) (internal quotation marks omitted).
    The government’s medical expert, Dr. Theodore Parran, was indisputably qualified
    to testify as an expert. Dr. Parran’s training and experience included not only practicing
    medicine for many years, but also teaching residency programs relating to pain and pain
    management, directing an addiction-medicine training program, directing a doctoring
    course for first- and second-year medical students at a medical school in Cleveland,
    directing a continuing medical education program, and conducting clinical work at an
    1
    Defendant raises an additional argument that the jury should be provided
    with legal definitions for the terms “legitimate medical purpose” and “usual
    course of professional practice,” but he concedes this argument is foreclosed by
    current precedent, and he raises this issue for preservation purposes only. We
    accordingly need not address the merits of his argument.
    -4-
    outpatient methadone clinic and various other facilities. Defendant does not dispute Dr.
    Parran’s qualifications; he only disputes the substance of his testimony.
    Dr. Parran testified that he had reviewed several of Defendant’s medical files and
    concluded, based on his training and experience, that Defendant’s drug prescriptions
    relating to each of the counts of the indictment were outside the scope of usual
    professional practice and not for a legitimate medical purpose. Dr. Parran testified, for
    instance, that Defendant would “not uncommonly” increase dosages of narcotics for
    patients whose condition was described as “stable,” with no indication in the records as to
    why the dosage was being increased, contrary to the typical medical practice. (R. Vol. IX
    at 1144.) Dr. Parran testified that Defendant failed to document the types of basic
    physical exams, medical histories, and requests for patients’ past medical records that
    even medical students would know to do “as part of the routine course . . . of medical
    practice.” (Id. at 1146.) With respect to one patient, he testified: “Anyone who knows
    anything about opiate pharmacology and about how to evaluate a patient for the presence
    or absence of tolerance to the life-threatening effects of opiates knows that before seeing
    a patient, that [there are certain] things that have to be done, and . . . they were not done
    here.” (Id. at 1372.) Moreover, Defendant continued prescribing narcotics to patients
    despite the presence of clear red flags of drug abuse, such as regular requests for early
    refills and concerned phone calls from family members or from pharmacists who refused
    to fill any more narcotic prescriptions for a particular patient because the patient was so
    clearly overmedicated. He prescribed controlled substances when there were
    -5-
    contraindications against use, such as pregnancy or respiratory ailments, and he
    prescribed multiple drugs that were dangerous in combination. He “relentlessly
    continued” prescribing controlled substances to a patient who had been admitted to the
    hospital with an overdose. (Id. at 1250.) Dr. Parran testified that, based on these and
    similar deficiencies in Defendant’s approach to and treatment of his drug-seeking
    patients, it was his expert opinion that Defendant’s conduct was outside the course of
    usual medical practice and not for a legitimate medical purpose.
    Defendant argues that this testimony should not have been admitted because it was
    not “the product of reliable principles and methods . . . reliably applied . . . to the facts of
    this case.” (Appellant’s Opening Br. at 28 (quoting Fed. R. Evid. 702).) Specifically,
    Defendant contends that Dr. Parran’s testimony was unreliable because, unlike the
    defense medical expert, he did not clearly delineate where he would draw the line
    between bad conduct that only amounts to civil malpractice and bad conduct that violates
    the criminal standard, but merely opined that the criminal standard is much more
    stringent. In the defense expert’s opinion, so long as a doctor prescribes a medication that
    could address a legitimate medical need for a patient with whom the doctor has a
    legitimate professional relationship, then the doctor has acted within the usual course of
    medical practice, and any deficits in treatment within that legitimate professional
    relationship must be redressed civilly, not criminally. Defendant argues that this
    testimony hews more closely to the Supreme Court’s explanation in United States v.
    Moore, 
    423 U.S. 122
    , 143 (1975), that a doctor may be found to have exceeded the
    -6-
    bounds of professional practice where, “[i]n practical effect, he acted as a large-scale
    ‘pusher.’” Defendant contends that Dr. Parran’s interpretation of the criminal standard
    improperly leaves a large gray area in which a doctor may be found criminally liable for
    prescriptions made within the bounds of a legitimate doctor-patient relationship. He
    argues that, because Dr. Parran failed to properly comprehend and describe the difference
    between criminal conduct and bad medical practice, “his testimony permitted conviction
    in a case that deviates sharply from those in which this Court has affirmed physicians’
    convictions.” (Appellant’s Reply Br. at 10.) He thus argues that Dr. Parran’s testimony
    should have been excluded under Rule 702 as inherently unreliable.
    We are not persuaded that the district court abused its discretion by admitting Dr.
    Parran’s testimony. Although “the standard for criminal liability under § 841(a) requires
    more than proof of a doctor’s intentional failure to adhere to the standard of care,” United
    States v. Feingold, 
    454 F.3d 1001
    , 1011 (9th Cir. 2006), this does not mean that an expert
    at a criminal trial must also propound on the similarities and differences between the
    criminal standard and inapplicable civil standards in order to provide reliable testimony
    on the relevant criminal standard. Defendant has not cited, nor have we found, a single
    case which even suggests, much less holds, that an expert witness must testify about the
    civil standard and establish a clear-cut delineation between civil malpractice and a
    doctor’s violation of the Controlled Substances Act in order for his testimony on the
    criminal standard to be reliable. To the contrary, all of the pertinent cases
    indicate—sensibly enough—that expert testimony in a criminal case should be based on
    -7-
    the criminal standard. Cf. United States v. Tran Trong Cuong, 
    18 F.3d 1132
    , 1138–41
    (4th Cir. 1994) (noting that district court erroneously told medical expert “to use a
    negligence or malpractice standard,” but holding that expert’s testimony “that he found
    almost every chart contained evidence of bad and harmful medical practice” was
    sufficient, along with evidence from patients and undercover agents, to establish a
    violation of the criminal standard).
    Although Defendant relies on Moore, Moore does not support his position. No
    doubt the doctor in Moore violated civil standards of care as well as the criminal standard
    by prescribing large quantities of methadone to his patients in a way that was
    “inconsistent with all accepted methods of treating 
    addicts,” 423 U.S. at 126
    , but the
    Supreme Court felt no need to discuss malpractice or draw any distinctions between the
    civil and criminal standards in order to hold that the doctor could be prosecuted under §
    841 for his conduct. Thus, nothing about Moore suggests that an expert witness must
    discuss the civil standard of care in order to reliably testify as to the criminal standard.
    Moreover, the fact that Moore involved more egregious behavior than the conduct at issue
    in this case does not prove that the only acceptable expert testimony in this case must be
    in Defendant’s favor. “Although the record in this case does not indicate that the
    defendant was as nonchalant about controlled substances as the defendant doctors in
    [other cases], there was ample evidence to support the jury verdict.” 
    Varma, 691 F.2d at 464
    ; see also United States v. MacKay, 
    715 F.3d 807
    , 823 (10th Cir. 2013) (“Neither the
    Supreme Court in Moore, nor the Ninth Circuit in Feingold stated that a specific set of
    -8-
    facts had to be present in order to find that a physician stepped outside of his role and
    issued prescriptions without a legitimate medical purpose.”).
    Contrary to Defendant’s arguments, we have sustained convictions in other cases
    involving similarly ambiguous and disputed facts. In Varma, for instance, we noted that
    “the jury might have concluded that the defendant doctor had only made a few bad
    judgments when prescribing 
    drugs.” 691 F.2d at 464
    . Although we acknowledged that
    there were “numerous other recently reported cases where the acts of doctors convicted of
    improperly prescribing controlled substances seem more egregious than those of Dr.
    Varma,” we held that there was “ample evidence” to support the jury verdict based on
    evidence that (1) his staff took incomplete medical histories; (2) the physical
    examination he performed on each of the undercover agents “was patently too short and
    inadequate”; (3) Dr. Varma “told his staff that he was troubled by his suspicion that some
    patients were taking advantage of him by requesting prescriptions for controlled
    substances for nonmedical reasons”; (4) at his staff’s suggestion, he put up a sign in the
    lobby stating that he would no longer prescribe certain drugs and told his staff “the
    patients probably would not return”; (5) while the sign was posted, Dr. Varma’s case load
    “dropped from 80 patients per day to 20 per day”; and (6) when Dr. Varma removed the
    sign, “his patient load increased to at least its former level.” 
    Id. Likewise, in
    MacKay,
    we affirmed a doctor’s § 841(a) conviction—even though “all of the prescriptions at issue
    were in the context of a regular doctor visit” and “his patients legitimately experienced
    pain”—based on evidence that the doctor’s examinations “lack[ed] depth,” he prescribed
    -9-
    narcotics in too high of dosages, he failed to check controlled-substance database reports,
    he “often did not question his patients’ excuses for early refills because he trusted them,”
    and he “did not conduct follow-up examinations before writing prescriptions for 
    refills.” 715 F.3d at 822
    –25. As in MacKay, Defendant “fails to see his conduct is similar” to
    defendants in other § 841(a) cases. 
    Id. at 823.
    While Defendant’s conduct was less
    egregious than the conduct of many doctors who have been convicted under § 841(a), his
    conviction is not the “sharp deviation” from precedent that he claims.
    At its heart, Defendant’s argument boils down to the contention that his expert’s
    interpretation of the criminal standard is the only correct one, and thus only his expert’s
    testimony should have been admitted at trial. However, Dr. Parran’s testimony was
    consistent with expert testimony we have considered in similar cases, see, e.g., 
    MacKay, 715 F.3d at 822
    –23, and Defendant has not shown that the district court committed a clear
    error of judgment or otherwise abused its discretion by allowing this testimony to be
    presented. In a § 841(a) case, “[t]here are no specific guidelines concerning what is
    required to support a conclusion that an accused acted outside the usual course of
    professional practice.” United States v. August, 
    984 F.2d 705
    , 713 (6th Cir. 1992).
    Instead, this is a fact-intensive inquiry in which the district court should avoid “unduly
    cabining the jury’s ability to consider a broad swath of evidence in determining whether
    [the medical practitioner’s] conduct had no legitimate medical purpose.” United States v.
    Volkman, 
    797 F.3d 377
    , 388 (6th Cir. 2015). The district court appropriately followed
    our guidance in Lovern by allowing the jury to receive conflicting “witnesses and
    -10-
    documentary proof at trial focused on the contemporary norms of the medical profession”
    so it could “sort out all the competing proof” to decide whether the conduct at issue in
    this case satisfied the criminal 
    standard. 590 F.3d at 1100
    ; see also 
    MacKay, 715 F.3d at 828
    –29 (“When experts do not reach the same conclusion, the jury is responsible for
    making credibility determinations, not the court.”). We see no abuse of discretion, and
    we therefore affirm the admission of Dr. Parran’s expert testimony.
    We turn next to Defendant’s argument that his conviction on four of the six
    controlled-substance counts must be reversed because they were duplicitous, since they
    each included at least two different controlled substances that were prescribed by
    Defendant to a specific patient on a particular date. “Duplicity is defined as the joinder of
    two or more distinct and separate criminal offenses in the same count of an indictment.”
    United States v. Schneider, 
    594 F.3d 1219
    , 1228 n.8 (10th Cir. 2010). We review the
    question of duplicity de novo. United States v. Trammell, 
    133 F.3d 1343
    , 1354 (10th Cir.
    1998).
    Defendant argues that the unit of prosecution under § 841(a) is a single controlled
    substance, and he contends that the indictment was duplicitous because it lumped
    different controlled substances—prescribed at the same time to the same patient—into a
    single count, rather than charging each substance as an individual offense. For support,
    he relies on United States v. Richardson, 
    86 F.3d 1537
    , 1552–53 (10th Cir. 1996), in
    which we held that “the simultaneous possession of different controlled substances
    constitute[s] separate offenses under section 841(a)” because “[t]he plain language of
    -11-
    section 841 confirms that Congress intended to treat different controlled substances as
    separate offenses.” Defendant contends that the same reasoning applies to his distribution
    of controlled substances: just as the statute “prohibits possession of ‘a controlled
    substance,’ not of ‘a controlled substance or group of controlled substances,’” 
    id. at 1553
    (internal quotation marks omitted), so too the statute prohibits distribution of “a
    controlled substance,” not distribution of “a controlled substance or group of controlled
    substances.”
    In response, the government contends that Defendant’s prescription of a
    combination of controlled substances to a specific patient during a particular medical visit
    constitutes a single completed transaction that was appropriately charged as a single count
    of the indictment. As this court has previously noted, “we know of no rule that renders an
    indictment duplicitous because it charges as one joint offense a single completed
    transaction instead of charging in separate counts as many offenses as the evidence at trial
    might conceivably sustain.” United States v. McKneely, 
    69 F.3d 1067
    , 1072 (10th Cir.
    1995) (quoting Korholz v. United States, 
    269 F.2d 897
    , 901 (10th Cir. 1959)) (brackets
    omitted). The government argues that there is no reason for the indictment in this case to
    be viewed as duplicitous where each count charges a single transaction, albeit one
    involving multiple drugs, conducted at the same time and place.
    We need not resolve this dispute, however, because any possible error in the
    indictment was cured by the district court’s instructions to the jury that it must not only
    unanimously agree “that the same act or acts or state of mind or states of mind have been
    -12-
    proven beyond a reasonable doubt” (R. Vol. I at 875), but that it must also unanimously
    agree “on which controlled substance or substances, if any, the government has proven
    beyond a reasonable doubt the defendant dispensed, distributed, or caused to be dispensed
    or distributed” (id. at 876). As we held in 
    Trammell, 133 F.3d at 1354
    –55, “[o]ne cure for
    an otherwise duplicitous indictment is to give an augmented instruction requiring
    unanimity on one or the other of the acts charged within a count that otherwise appear to
    constitute separate offenses.” The district court appropriately gave such instructions here
    and thus counteracted any problems that may have been created by the possibly
    duplicitous indictment. 
    Id. at 1355.
    Defendant argues that the unanimity instructions in this case failed to cure the
    duplicity problem because the instructions permitted the jury to find Defendant guilty if
    the jurors unanimously agreed beyond a reasonable doubt that Defendant should be found
    guilty based on more than one controlled substance that was prescribed during a
    particular medical visit. In other words, to take just one example, the jury might have
    unanimously agreed that Defendant was guilty of Count Twenty of the indictment based
    on both the hydrocodone and the zolpidem he prescribed to patient L.D. on March 3,
    2009, rather than finding him guilty based on just one of these drugs. However, the fact
    that the jurors might have unanimously agreed that more than one specific drug had been
    improperly prescribed during the course of a medical visit does nothing to undermine the
    unanimity of its finding that Defendant violated the Controlled Substances Act in the
    course of that visit. If anything, this just indicates that Defendant could possibly have
    -13-
    been convicted of more offenses than he was. “[T]he effect of joining several violations
    as one redounds to the benefit of defendant.” 
    Korholz, 269 F.2d at 901
    .
    Defendant contends that the combination of multiple drugs into a single count of
    the indictment prejudiced his case because it allowed the jury to consider the propriety of
    prescribing these drugs in combination. According to Defendant, each controlled
    substance must stand or fall on its own grounds. Thus, Defendant argues, the government
    was required to prove that each controlled substance was improperly prescribed in and of
    itself, without regard to the other prescriptions issued at the same time. Defendant cites
    no authority to support this argument, and we find it to be unpersuasive. By Defendant’s
    reasoning, the prescription of large quantities of several different powerful narcotics at
    the same time would not violate § 841(a) so long as the patient had a problem with pain
    that each individual narcotic could help alleviate in isolation, even if the prescription of
    all of them together would be contrary to any legitimate medical practice. We see no
    reason for adopting such a rule. Defendant has provided no persuasive reason why a jury
    may not consider whether the prescription of multiple controlled substances, in
    combination, took a doctor’s actions outside the usual course of medical practice and into
    the realm of criminal activity. We thus reject his argument that the unanimity instruction
    failed to cure the potential problem created by charging multiple controlled substances in
    the same count based on an individual medical visit.
    We must “presume that the jurors conscientiously observed the instructions and
    admonitions of the Court.” United States v. Morris, 
    623 F.2d 145
    , 148 (10th Cir. 1980).
    -14-
    The jury was appropriately instructed on unanimity in this case, and we presume that the
    jury conscientiously followed this instruction and did not convict Defendant of any of the
    controlled substances counts unless it unanimously agreed on which controlled substance
    or substances were inappropriately prescribed to Defendant’s patients. We therefore
    affirm Defendant’s convictions on the controlled-substance counts.
    We turn then to Defendant’s first challenge to the false-statement conviction.
    Defendant argues that the trial evidence, the jury instructions, and the prosecutor’s
    closing arguments constructively amended the indictment on this count, allowing him to
    be convicted on a basis not alleged in the indictment. Defendant did not raise this
    objection below, so we review only for plain error. See United States v. Brown, 
    400 F.3d 1242
    , 1253 & n.6 (10th Cir. 2005). “We find plain error only when there is (1) error, (2)
    that is plain, (3) which affects substantial rights, and (4) which seriously affects the
    fairness, integrity, or public reputation of judicial proceedings.” United States v. Romero,
    
    491 F.3d 1173
    , 1178 (10th Cir. 2007). “However, we apply this rule less rigidly when
    reviewing a potential constitutional error.” United States v. James, 
    257 F.3d 1173
    , 1182
    (10th Cir. 2001).
    Even under plain error review, we will “find that a constructive amendment
    occurred when the evidence presented at trial, together with the jury instructions, raises
    the possibility that the defendant was convicted of an offense other than that charged in
    the indictment.” United States v. Wonschik, 
    353 F.3d 1192
    , 1197 (10th Cir. 2004)
    (internal quotation marks omitted) (emphasis added); see also, e.g., Hunter v. State of
    -15-
    New Mexico, 
    916 F.2d 595
    , 599–600 (10th Cir. 1990) (holding that constructive
    amendment constitutes plain error and requires reversal). “In assessing a claim of an
    impermissible constructive amendment, our ultimate inquiry is whether the crime for
    which the defendant was convicted at trial was charged in the indictment; to decide that
    question, we therefore compare the indictment with the district court proceedings to
    discern if those proceedings broadened the possible bases for conviction beyond those
    found in the operative charging document.” United States v. Farr, 
    536 F.3d 1174
    , 1180
    (10th Cir. 2008). The jury instructions are of particular importance in this analysis:
    [W]hen conduct necessary to satisfy an element of the offense
    is charged in the indictment and the government’s proof at
    trial includes uncharged conduct that would satisfy the same
    element, we need some way of assuring that the jury
    convicted the defendant based solely on the conduct actually
    charged in the indictment. Typically, that assurance will be
    provided by jury instructions requiring the jury to find the
    conduct charged in the indictment before it may convict. If
    the jury instructions do not impose that limitation, however,
    the defendant’s conviction could be based on conduct not
    charged in the indictment. That possibility results in a
    constructive amendment of the indictment, requiring reversal,
    because it “destroys the defendant’s substantial right to be
    tried only on charges presented in an indictment.”
    United States v. Ward, 
    747 F.3d 1184
    , 1192 (9th Cir. 2014) (quoting Stirone v. United
    States, 
    361 U.S. 212
    , 217 (1960)) (internal brackets omitted). “Measuring against this
    standard, we are persuaded that the trial proceedings in this case effected a constructive
    amendment.” 
    Farr, 536 F.3d at 1180
    .
    -16-
    The indictment charged Defendant with violating § 843(a)(4)(A) and (d) based on
    a specific false statement:
    2. Specifically, in an application filed with the Drug Enforcement
    Administration (“DEA”), for registration pursuant to 21 U.S.C. Section 823,
    required for eligibility to dispense controlled substances, the defendant
    answered in the negative (“N”) to the question, “Has the applicant ever
    surrendered (for cause) or had a state professional license or controlled
    substance registration revoked, suspended, denied, restricted, or placed on
    probation, or is any such action pending?” when in truth and fact the
    defendant’s professional license to practice medicine had been previously
    suspended by the State of Colorado.
    (R. Vol. I at 457–58.) At trial, however, the government’s witnesses testified that
    Defendant had also made a second false statement in his DEA application by answering
    “no” to a similar question about the surrender or suspension of a federal controlled-
    substance registration; the witness asserted it was dishonest for him to “mark[] both of
    those ‘No’” when “he had, in fact, lost his state license and surrendered his DEA
    registration.” (R. Vol. IX at 717; see also 
    id. at 784.)
    The government also introduced
    into trial an unredacted copy of Defendant’s responses to all of the questions on the DEA
    application, with no indication that Defendant’s response to Question 3 was the only
    statement at issue in this case.
    This evidence of a different, unindicted false statement was not corrected by the
    jury instructions, which failed to narrow the basis for the false-statement count back down
    to the specific false statement charged in the indictment. Rather, the jury was simply
    instructed that it should find Defendant guilty of making a false statement if it concluded
    that the government had proven five facts beyond a reasonable doubt: (1) Defendant
    -17-
    applied for a DEA registration on or about September 19, 2012; (2) “[i]n that application,
    Dr. Miller knowingly and intentionally furnished false or fraudulent information”; (3) this
    information was material to the DEA determination; (4) Defendant knew the information
    was false or fraudulent; and (5) Defendant acted knowingly and intentionally. (R. Vol. I
    at 724.) The jury was never instructed that the charged false statement was Defendant’s
    response to Question 3 of the application, nor was it instructed that it could only find
    Defendant guilty if it found that his answer to this question was false specifically because
    “in truth and fact the defendant’s professional license to practice medicine had been
    previously suspended by the State of Colorado.” (Id. at 457–58.)
    The prosecutor’s closing arguments likewise indicated that the jury could find
    Defendant guilty based on a false statement other than the indicted false statement
    regarding Defendant’s suspended Colorado professional license. Specifically, the
    prosecutor argued:
    Let’s look at a question he answered himself and see if there’s any
    additional evidence that he lied. In fact, it’s kind of a double-barreled
    question. That’s usually because most applicants say “no” to both.
    But, in fact, Dr. Miller should have said “yes” to both parts of the
    question. With regard to state professional license, it was suspended. With
    regard to his controlled substance registration, he had surrendered it for
    cause. His answer “no” to both of these things, which are both falsehoods,
    is evidence he was working to get that registration back, no matter what he
    had to do.
    (R. Vol. IX at 3227–28.) The government argues on appeal that the prosecutor’s
    arguments did not cause or contribute to a constructive amendment of the indictment
    because the prosecutor’s argument was still premised on Question 3, which was the
    -18-
    question mentioned in the indictment. In other words, although the prosecutor’s
    argument that Defendant lied on the second half of this “double-barreled question” was
    erroneous—either as an argument that Defendant lied about a state controlled-substance
    registration, which was not supported by the evidence, or as an argument that Question 3
    was asking about federal controlled-substance registrations, which is not a reasonable
    interpretation of the application’s plain language—the government argues that this error
    did not amount to a constructive amendment of the indictment because it was still tied to
    Question 3. However, this argument misses the point. The indictment did not simply
    charge Defendant with providing a false statement as to Question 3; rather, the indictment
    specifically alleged that Defendant made a false statement in his response to this question
    because “in truth and fact the defendant’s professional license to practice medicine had
    been previously suspended by the State of Colorado.” The indictment thus directly tied
    the false-statement charge to Defendant’s suspended Colorado license, and the
    prosecutor’s argument that the jury could convict him based instead on the surrender of
    his federal controlled-substance registration reveals the very real possibility that
    Defendant was convicted on a different set of facts than those alleged in the indictment.
    See 
    Hunter, 916 F.2d at 599
    .
    The Fifth Circuit considered a similar situation in United States v. Adams, 
    778 F.2d 1117
    (5th Cir. 1985). The defendant in that case was charged with violating 18
    U.S.C. §§ 922(a)(6) and 924(a), which prohibit the use of false statements or false
    identification in connection with firearm or ammunition sales. The indictment
    -19-
    specifically alleged that the defendant “did knowingly furnish and exhibit a false,
    fictitious and misrepresented identification, that is, a Mississippi Driver’s License
    Number XXX-XX-XXXX, to the firearms dealer, which identification was likely to
    deceive the firearms dealer . . . in that Ernest Adams represented that he was Ernest Cole,
    whereas, in truth and fact, as he then well knew, he was Ernest Adams.” 
    Id. at 1118–19.
    At trial, however, the government’s theory of the case was “that the driver’s license was
    false because it bore the name Ernest Cole, which was not Adams’ true name, and also
    because it bore a Meridian, Mississippi address, while the defendant was in fact not a
    Mississippi resident, but instead resided in Detroit, Michigan.” 
    Id. at 1120
    (emphasis
    omitted). “Consistent with this theory the government introduced evidence on the falsity
    of the name Ernest Cole and on the falsity of the Meridian, Mississippi, address.” 
    Id. The jury
    instructions also failed to limit the jury to consideration of the false name, but
    simply instructed the jury it should consider whether the defendant’s purpose in
    “furnishing and exhibiting a Mississippi driver’s license, indicating the identity and
    address thereon,” was to deceive the dealer. 
    Id. at 1122.
    Based on the evidence and instructions presented to the jury in that case, the Fifth
    Circuit held that the applicable legal standards, and particularly the Supreme Court’s
    decision in Stirone, 
    361 U.S. 212
    , compelled the “inescapable conclusion” that a
    constructive amendment had occurred because the defendant’s conviction might have
    been impermissibly based on the false address, not the false name. 
    Adams, 778 F.2d at 1124
    . “The manner in which the driver’s license was false bears on an essential element
    -20-
    of the crime charged.” 
    Id. While the
    grand jury could have chosen to draw up an
    indictment alleging falsity as to both name and residence, it chose instead to indict him
    only as to the false name, and thus the introduction of evidence concerning the
    defendant’s residence permitted conviction upon a set of facts different than those alleged
    in the indictment. “[W]hen only one particular kind of falsity is charged to have been
    made in furnishing a license, a conviction must rest on that charge and not another, even
    though a conviction might have rested on a more general indictment that omitted the
    reference to Ernest Cole.” 
    Id. at 1125
    (citing 
    Stirone, 361 U.S. at 217
    –18). By going
    “beyond the grand jury’s charge,” the government and trial court “constructively and
    impermissibly amended the indictment, thereby denying Adams a substantial right under
    the fifth amendment.” 
    Id. This circuit
    has likewise held that a constructive amendment occurs when the
    indictment alleges a violation of the law based on a specific set of facts, but the evidence
    and instructions then suggest that the jury may find the defendant guilty based on a
    different, even if related, set of facts. For instance, in United States v. Bishop, 
    469 F.3d 896
    , 901–03 (10th Cir. 2006), overruled in part on other grounds by Gall v. United
    States, 
    552 U.S. 38
    (2007), we held that a constructive amendment had occurred where
    the indictment charged the defendant with unlawfully possessing “any ammunition and
    firearm which has been shipped or transported in interstate commerce, that is a Hi-Point
    9mm pistol, serial number P117787,” but the government introduced evidence and a jury
    instruction referring to a .38 caliber bullet as well as the Hi-Point pistol. “Even though
    -21-
    the indictment in question used the language ‘any ammunition and firearm which has
    been shipped or transported in interstate commerce,’ it explicitly modified that
    terminology with the phrase ‘that is, a Hi-Point 9mm pistol.’” 
    Id. at 903.
    We noted that,
    as in the Seventh Circuit case of United States v. Leichtnam, 
    948 F.2d 370
    , 379 (7th Cir.
    1991), “the government could have left the indictment language broad, but here [chose] to
    limit the bases for possible conviction to a specific firearm.” 
    Bishop, 469 F.3d at 903
    (internal quotation marks omitted). Thus, “the admission of the .38 caliber bullet and the
    jury instructions constructively amended the indictment against Mr. Bishop.” 
    Id. In that
    case, we found the constructive amendment to be harmless because the jury filled out a
    special verdict form specifically stating that it had unanimously found the defendant
    guilty of possessing both the pistol and the bullet, and this specific finding allowed us to
    “definitively conclude that the jury would have convicted Mr. Bishop on the same count
    merely due to his possession of the pistol.” 
    Id. at 904.
    There was no such special verdict
    form to save the constructive amendment in this case. Cf. 
    Farr, 536 F.3d at 1185
    n.7
    (“We acknowledge that in some constructive amendment cases we have loosely invoked
    the term ‘harmless error.’ In reality, however, we declined to reverse convictions in these
    cases only because the alleged variation from the indictment at trial did not raise the
    possibility that the defendant was convicted of a crime different from that charged in the
    indictment—that is, there simply was no conviction under an improperly added charge.”
    (citations omitted)).
    -22-
    Likewise, in Farr, a constructive amendment occurred where “the government
    opted to include in its indictment particulars about the nature of the tax at issue,” rather
    than simply charging the defendant with tax evasion, and “the evidence and jury
    instructions at trial introduced to the jury an alternative way in which the crime could
    have occurred,” through “a different tax 
    evaded.” 536 F.3d at 1181
    –84. And in Brown,
    we held that a constructive amendment had occurred where the defendant was indicted
    for carrying a gun in relation to a drug-trafficking offense, but the jury instructions
    suggested that he could be convicted “for some activity other than carrying the gun, such
    as having the gun readily available, displaying it, or brandishing 
    it.” 400 F.3d at 1252
    –53.
    In short, “[i]t is settled law in this circuit, as elsewhere, that the language
    employed by the government in its indictments becomes an essential and delimiting part
    of the charge itself, such that if an indictment charges particulars, the jury instructions and
    evidence introduced at trial must comport with those particulars.” 
    Farr, 536 F.3d at 1181
    (internal quotation marks omitted); see also, e.g., 
    Ward, 747 F.3d at 1192
    (constructive
    amendment occurred where defendant was indicted for aggravated identity theft as to two
    named victims, but trial evidence and prosecutor’s arguments referred to other individual
    victims, and juror instructions did not specify that conviction must be based on victims
    named in the indictment); United States v. Randall, 
    171 F.3d 195
    , 203–10 (4th Cir. 1999)
    (constructive amendment occurred where indictment charged defendants with carrying
    firearm “during and in relation to a drug trafficking crime, . . . specifically, distribution of
    -23-
    a narcotic controlled substance,” but “the government, through its presentation of
    evidence and its closing argument, and the district court, through its jury instructions,
    constructively amended Count Six of the indictment by allowing proof of an alternative §
    924(c) predicate offense not charged in the indictment—possession with intent to
    distribute drugs” (emphasis omitted)); United States v. Weissman, 
    899 F.2d 1111
    ,
    1112–14 (11th Cir. 1990) (constructive amendment occurred when indictment alleged
    that defendant committed a RICO violation “while employed by or associated with an
    enterprise, to wit, a group . . . known as the DeCavalcante Family of La Cosa Nostra,” but
    district court instructed jury that “it isn’t necessary for [the government] to prove that the
    enterprise was the DeCavalcante Family if there was an enterprise proved that meets the
    definitions of the term”); United States v. Willoughby, 
    27 F.3d 263
    , 266 (7th Cir. 1994)
    (constructive amendment occurred where indictment charged defendant with using
    firearm “during and in relation to a drug trafficking crime, to wit, the distribution of
    cocaine,” but trial evidence showed that firearm was used while possessing drugs with
    intent to distribute, not while actually distributing). When the evidence and jury
    instructions do not “comport with those particulars,” 
    Farr, 536 F.3d at 1181
    , the
    indictment has been constructively amended, and “[s]uch a constructive amendment must
    be corrected on appeal, even [when the defendants] failed to preserve the issue by
    objection,” 
    Randall, 171 F.3d at 210
    .
    In this case, the government chose to indict Defendant on the specific charge that
    he made a false statement by answering no to a question about past problems with a state
    -24-
    professional license when in fact his state Colorado license had previously been
    suspended. The government then introduced evidence that Defendant had made a
    different false statement by answering no to a question about past problems with a
    controlled-substance registration when in fact his DEA registration had previously been
    surrendered. The government further argued to the jury that both of these statements
    were falsehoods sufficient to sustain a conviction. And the jury instructions did not
    specify that the jury could only convict Defendant if it found that he had provided a false
    statement relating to his previously suspended Colorado license. Thus, we have no
    “assur[ance] that the jury convicted the defendant based solely on the conduct actually
    charged in the indictment.” 
    Ward, 747 F.3d at 1191
    . Rather, the government’s trial
    evidence and arguments, combined with the non-specific jury instructions, raise a real
    possibility that the jury based its finding of guilt on a different false statement than the
    false statement that was specified in the indictment, thus “broadening the possible bases
    for conviction from that which appeared in the indictment,” United States v. Miller, 
    471 U.S. 130
    , 138 (1985) (emphasis omitted). We, like the Fifth Circuit in Adams, are
    compelled to the “inescapable conclusion” that a constructive amendment occurred in this
    
    case, 778 F.2d at 1124
    . And because this constructive amendment was contrary to the
    “settled law” of this circuit, 
    Farr, 536 F.3d at 1181
    , this error was clear and obvious, thus
    satisfying both the first and the second prongs of plain error review.
    As for the third and fourth prongs of plain error review, the government argues
    that Defendant cannot satisfy either of these prongs because “[t]he evidence is
    -25-
    overwhelming that Dr. Miller made a false statement when he answered no in his DEA
    application,” since “[t]here is no dispute that . . . his medical license had been suspended
    by the state.” (Appellee’s Br. at 33.) This argument is based on a flawed premise. True,
    the district court ruled before trial that his statement was false as a matter of law, thus
    preventing Defendant from contesting this particular element of the offense. However,
    the district court’s ruling left open the question—hotly disputed at trial—as to whether his
    false statement was knowingly or intentionally made. Defendant testified at length that
    his negative answer to this question was based on his honest belief—based in part on
    conversations with his attorney—that he did not need to answer “yes” to this question
    because his prior suspension had been voided and effectively erased from existence when
    the Colorado medical board issued an order that “vacated” the suspension. Perhaps the
    jury credited this testimony; perhaps it did not. We cannot tell whether the jury based its
    verdict on a finding that Defendant knew of the falsity of his statement regarding his
    Colorado professional license, or whether it instead based its verdict on the
    unindicted—and mostly uncontested—false statement regarding the surrendered DEA
    registration. We will not “presume the jury’s thinking.” 
    Hunter, 916 F.2d at 600
    . But
    this testimony certainly makes the evidence of Defendant’s “guilt on the charged crime”
    far from “‘overwhelming’ and ‘essentially uncontroverted.’” 
    Brown, 400 F.3d at 1254
    .
    Our review of the record persuades us that there is a “reasonable probability that,
    but for the error claimed, the result of the proceeding would have been different.” United
    States v. Kaufman, 
    546 F.3d 1242
    , 1252 (10th Cir. 2008); see also United States v. Hill,
    -26-
    
    749 F.3d 1250
    , 1263–64 (10th Cir. 2014) (“A reasonable probability is a probability
    sufficient to undermine confidence in the outcome,” and “should not be confused with[] a
    requirement that a defendant prove by a preponderance of the evidence that but for error
    things would have been different.” (internal quotation marks omitted)). Based on the
    evidence, the government’s arguments, and the non-specific jury instructions, the jury
    might very well have based its verdict on the largely undisputed statement regarding the
    DEA registration, rather than the hotly contested statement charged in the indictment.
    Defendant has thus satisfied the third prong of plain error review.
    We are also persuaded that Defendant has satisfied the fourth prong of plain error
    review, which requires a defendant to show that the error “seriously affects the fairness,
    integrity, or public reputation of judicial proceedings.” 
    Brown, 400 F.3d at 1253
    . This
    case does not present the type of “overwhelming and essentially uncontroverted”
    evidence we relied on to uphold a conviction under the fourth prong of plain error review
    in Brown. 
    Id. at 1254.
    Rather, as discussed above, Defendant’s testimony, if credited by
    the jury, would defeat an essential element of this crime—the mens rea requirement. Cf.
    United States v. Laughlin, 
    26 F.3d 1523
    , 1528 (10th Cir. 1994) (holding, in case
    involving inadequate jury instructions, that “it would be grossly unfair” to affirm a
    conviction for medicaid fraud where “we cannot confidently know whether the jury”
    found that defendant knew his claims were false).
    As we noted in United States v. Gonzalez-Huerta, 
    403 F.3d 727
    , 745 (10th Cir.
    2005), where a constitutional error has affected the defendant’s substantial rights, thus
    -27-
    satisfying the third prong of the plain error test, “it is ordinarily natural to conclude that
    the fourth prong is also satisfied and reversal is necessary in the interest of fairness,
    integrity, and the public reputation of judicial proceedings. Not to reverse to correct the
    error is to ignore the injury the defendant suffered from the violation of his or her
    constitutional rights.” The constructive amendment of an indictment violates two
    separate constitutional rights, depriving the defendant of both his Fifth Amendment right
    to be indicted by a grand jury on the charges against him and his Sixth Amendment right
    to receive notice of those charges. 
    Farr, 536 F.3d at 1179
    . Thus, “it is a fundamental
    precept of the federal constitutional law that a ‘court cannot permit a defendant to be tried
    on charges that are not made in the indictment.’” 
    Hunter, 916 F.2d at 598
    (quoting
    
    Stirone, 361 U.S. at 217
    ). As Defendant argues, “[t]o countenance the constructive
    amendment here would be to contravene this long-standing and fundamental foundation
    of a fair trial.” (Appellant’s Opening Br. at 45.) “Given our relaxed standard in the plain
    error analysis when reviewing a potential constitutional error,” United States v. Saucedo,
    
    950 F.2d 1508
    , 1517 (10th Cir. 1991), abrogated on other grounds by Stinson v. United
    States, 
    508 U.S. 36
    (1993), we are convinced that the circumstances of this case warrant
    an exercise of our discretion to vacate Defendant’s unconstitutional conviction on this
    count. Cf. United States v. Hauk, 
    412 F.3d 1179
    , 1197 (10th Cir. 2005) (“To leave an
    erroneous sentence intact after acknowledging that it was calculated through
    constitutionally suspect means could reflect poorly on the public reputation of the
    judiciary.”).
    -28-
    We therefore vacate Defendant’s false-statement conviction and sentence. As in
    Farr, “our ruling on the constructive amendment question does not speak to the question
    of evidentiary sufficiency, and thus does not implicate double jeopardy 
    concerns.” 536 F.3d at 1186
    . The evidence, arguments, and jury instructions in this case
    “unconstitutionally broadened the basis for conviction, constructively amending the
    indictment.” 
    Id. at 1188.
    “At the same time, however, the government’s evidence at trial
    was legally sufficient to convict [Defendant] for [making a false statement] and thus no
    double jeopardy impediment exists to h[is] retrial,” if the government so elects. 
    Id. at 1188–89.
    Unlike the situation in Farr, however, the government may not reframe the
    indictment to fit its alternative set of facts on remand: broadening or substantially
    amending the indictment would run afoul of the five-year statute of limitations. See
    United States v. Davis, 
    953 F.2d 1482
    , 1491 (10th Cir. 1992); see also 18 U.S.C. §
    3282(a) (setting forth a general five-year statute of limitations for non-capital federal
    crimes). Thus, any retrial on this count must be based on the specific false statement
    charged in the indictment.
    On appeal, Defendant also challenges his false-statement conviction on the
    grounds that his statement was not false as a matter of law, entitling him to acquittal by
    the court. This argument presents a question of pure law that will be at issue again in any
    retrial. It is accordingly appropriate for us to address this argument now.
    As previously discussed, the indictment charged Defendant with providing false
    information on his DEA application by answering “no” to a question that asked if he had
    -29-
    “ever surrendered (for cause) or had a state professional license or controlled substance
    registration revoked, suspended, denied, restricted, or placed on probation.” (R. Supp.
    Vol. I at 12.) One month prior to answering “no” to this question, Defendant’s state
    medical license had been suspended. Defendant contends, however, that his answer was
    not false as a matter of law because, in the interim, the state medical board had “ordered
    that the order of suspension . . . be vacated” effective ten days after his license was
    suspended. (Id. at 7.) Defendant argues that the term “vacate” is a legal term of art
    which means that the previous order has been nullified and made as if it never existed.
    Thus, he argues that his response on the DEA application was true as a matter of law
    based on the vacatur of his prior suspension.
    Both parties agree that the district court was correct in treating this issue as a
    matter of law to be decided by the court, rather than a matter of fact to be left for the jury;
    Defendant simply contends that the issue should have been resolved as a matter of law in
    his favor, rather than the government’s. Both parties also appear to agree that Colorado
    law governs this issue. For purposes of this appeal, we do not question these
    assumptions, but proceed on the basis of the parties’ agreement to decide whether the
    vacatur of the order of suspension made Defendant’s statement true or false as a matter of
    law under the substantive law of Colorado. “We consider this purely legal question de
    novo.” Haynes v. Williams, 
    88 F.3d 898
    , 899 (10th Cir. 1996).
    Neither party has cited, nor have we found, any Colorado cases (nor cases from
    any other jurisdiction, for that matter) addressing the question of whether the vacatur of
    -30-
    an order suspending a medical license renders the suspension as if it had never happened
    as a matter of law. Defendant relies instead on cases from dissimilar contexts. For
    instance, Defendant cites to First National Bank of Telluride v. Fleisher, 
    2 P.3d 706
    , 716
    (Colo. 2000), in which the Colorado Supreme Court considered whether a judgment lien
    was superior to a deed of trust where (1) in an action for breach of a promissory note, the
    court issued a default judgment, and the defendant filed a judgment lien against certain
    property; (2) the trial court vacated the default judgment because it had not given
    adequate notice to the defaulting party and thus default judgment was a violation of due
    process; (3) a third party obtained a deed of trust on the same property; and (4) the
    plaintiff ultimately succeeded in the contract case and obtained a second lien on the
    property. The Colorado Supreme Court held that, based on the specific facts of this case,
    the default judgment should have been vacated as “a legal nullity,” rendering the first
    judgment lien “without legal effect,” and thus causing the deed of trust to be superior to
    the subsequent second lien. 
    Id. Defendant argues
    that this case establishes Colorado’s
    position that vacatur always renders the vacated order “a legal nullity” that is essentially
    erased from history. We are not persuaded, however, that Fleisher or the other cases
    cited by Defendant are so broad as to cover the very dissimilar situation before us.
    In deciding the legal effect of the vacatur order at issue in this case, there are a few
    important points that must be considered. First, it is important to note that the medical
    board did not “vacate” Defendant’s order of suspension based on some defect in the order
    itself. The board did not conclude, for instance, that the suspension had been improper or
    -31-
    that some procedural defect rendered it a legal nullity. Defendant’s medical license was
    suspended because the Colorado Physician Health Program had reported “that
    [Defendant] was unable to practice medicine with reasonable skill and safety to patients
    until he underwent a substance abuse evaluation at an out-of-state facility.” (R. Supp.
    Vol. I at 2.) Rather than undergoing the recommended evaluation, Defendant “notified
    CPHP that he declined to participate in an assessment.” (Id. at 3.) When Defendant still
    failed to schedule an evaluation, the medical board suspended Defendant’s license based
    on his “fail[ure] to comply with CPHP’s requirement for evaluation,” with the suspension
    effective August 21, 2012. (Id.) The suspension order stated: “Such suspension shall
    remain in effect until such time as [Defendant] has met the recommendations made . . .
    and until [Defendant] has received written notice from the Board that the suspension has
    been vacated. The suspension shall not be lifted until the Board has reviewed a final
    report issued by CPHP.” (Id.) A few weeks later, after “[Defendant], through counsel,
    and CPHP, provided adequate confirmation to the board of [Defendant’s] compliance
    with CPHP’s recommendations,” the board ordered that the suspension order “be
    vacated” effective August 31, 2012. (Id. at 7.) Thus, whereas the default judgment at
    issue in Fleisher was vacated because it should never have been granted in the first place,
    Defendant’s suspension order was only vacated because he had come into compliance
    with the board’s requirements. Indeed, rather than suggesting that it had made a mistake
    in suspending Defendant’s license, the board reaffirmed the reasons for the suspension
    -32-
    before stating the suspension would be “vacated” because those reasons had now been
    addressed.
    Second, the definition of the term “vacate” does not necessarily mean “to nullify.”
    Webster’s Dictionary provides several definitions of “vacate,” including both “to make of
    no authority or validity; make void,” and “to make useless, ineffectual, or without force
    or significance.” Webster’s Third New International Dictionary 2527 (1986); see also
    Weitz Co., LLC v. Mid-Century Ins. Co., 
    181 P.3d 309
    , 312–13 (Colo. App. 2007) (noting
    that “[d]ictionaries may be used to assist in the determination of the plain and ordinary
    meaning of words” and quoting extensively from several editions of Webster’s
    Dictionary). While the first of these definitions might support Defendant’s argument that
    vacatur of his suspension order made it void ab initio, the second definition does not carry
    the same connotations. An order may be made “useless, ineffectual, or without force or
    significance” without being retroactively negated. Moreover, even the Black’s Law
    Dictionary definition that Defendant relies on does not necessarily support his argument:
    something may be “cancelled” without being retroactively erased from existence. See
    Black’s Law Dictionary (10th Ed. 2014) (defining “vacate” as “To nullify or cancel;
    make void; invalidate”).2
    2
    We express some doubt as to whether a technical legal definition should
    govern our interpretation of a document that was not drafted either by or for
    attorneys. See Colo. Rev. Stat. § 12-36-103(1)(a)(I) (explaining that the sixteen-
    member board shall be composed of eleven physicians, one physician assistant,
    and four members of the public). When Colorado courts construe insurance
    policies issued to consumers, they interpret these policies in accordance with the
    -33-
    Third, the director of the medical board testified at Defendant’s trial that an order
    to vacate a suspension “terminates that suspension as of that day,” but “does not” erase
    the suspension as if it never happened. (R. Vol. IX at 808.) Defendant contends that
    “this lay opinion testimony” is irrelevant to the question of the legal effect of the vacatur
    order. (Appellant’s Reply Br. at 13.) Given the potential ambiguity in the term “vacate,”
    however, we are not persuaded that testimony from the medical board as to what the
    medical board meant when it used this term is irrelevant to the question of what legal
    effect the medical board’s order should be given.
    Furthermore, the director of the medical board’s testimony is entirely consistent
    with the language of the pertinent orders themselves. For instance, at the end of the
    suspension order, the medical board used the term “lifted” interchangeably with the term
    “vacated” to describe the conditions under which the suspension would no longer “remain
    in effect.” (R. Supp. Vol. I at 3.) Lifting a suspension would remove its force or
    plain, lay understanding of the terms at issue, since the intended audience of these
    policies is not expected to have sophisticated legal training. Safeco Ins. Co. of
    Am. v. Robertson, 
    994 P.2d 488
    , 490 (Colo. App. 1999). Under Colorado law
    “[n]ot only should strained constructions be avoided in favor of common
    constructions, but technical and legal definitions should also be avoided. In other
    words, the plain meaning of the words should be employed in a lay manner
    consistent with what would be understood by a person of ordinary intelligence.”
    Dish Network Corp. v. Arch Speciality Ins. Co., 
    989 F. Supp. 2d 1137
    , 1144 (D.
    Colo. 2013). We see no reason why this principle would not apply to the medical
    board’s orders in this case. We need not resolve this possible issue, however,
    since the legal definition may still reasonably be interpreted to give effect to the
    board’s clear intent to simply lift or cancel and not retroactively nullify the
    suspension.
    -34-
    significance, by allowing the doctor to return to practicing medicine again, but the term
    “lift” does not suggest that the suspension would be nullified or voided altogether. The
    medical board’s treatment of vacatur as synonymous with lifting a suspension thus
    strongly suggests that the medical board had the second definition in mind when it used
    the term “vacate.” Likewise, the fact that the vacatur was made effective on the date the
    vacatur order was entered, rather than being made retroactively effective on the date of
    the suspension, further suggests that the medical board did not intend for the vacatur to
    make the suspension void and as if it had never existed, but rather simply intended to lift
    the suspension so that Defendant could return to the practice of medicine. Thus, the
    documents themselves strongly support the district court’s conclusion that the term
    “vacate” as used by the medical board did not nullify Defendant’s suspension ab initio,
    making it as if the suspension had never occurred, but simply ended the suspension and
    thus permitted him to again practice medicine.
    Finally, we note that the Colorado medical board’s enabling statute is the Colorado
    Medical Practice Act, which was enacted “in the interests of public health, safety, and
    welfare . . . to the end that the people shall be properly protected against unauthorized,
    unqualified, and improper practice of the healing arts in this state,” and must “be
    construed in conformity with this declaration of purpose.” Colo. Stat. Ann. §§ 12-36-
    102(1); see also Cross v. Colo. State Bd. of Dental Examiners, 
    552 P.2d 38
    , 41 (Colo.
    App. 1976) (“The Dental Practice Law does not mention surrender of a license.
    Accordingly, we are guided by the fundamental rules of statutory construction that the
    -35-
    legislative intent is to be ascertained and given effect, and that a statute should be given a
    construction which will render it effective in accomplishing the purpose for which it was
    enacted.”). Although this case does not raise an issue of statutory interpretation, we
    nonetheless find it appropriate to construe the board’s vacatur order in light of the board’s
    statutory mandate to protect the public “against the unauthorized, unqualified, and
    improper practice of the healing arts.” Defendant contends that vacatur of the suspension
    of a medical license makes it as though the license had never been suspended. Thus, by
    Defendant’s reasoning, a doctor would face no repercussions for practicing on a
    suspended license so long as the suspension was ultimately vacated. But surely this
    cannot be correct. We cannot believe that the Colorado medical board or Colorado courts
    would countenance the unauthorized practice of medicine by a doctor operating under a
    suspended license, even if the suspension was ultimately vacated. We are not persuaded
    that we should adopt an interpretation of the medical board’s order that would frustrate
    the board’s statutory mandate to protect the public, particularly where such an
    interpretation would be inconsistent both with the rest of the language in the pertinent
    documents and with the trial testimony that the board used the term “vacate” to refer only
    to cancelling or terminating the suspension, not to nullifying it altogether.
    In light of all of these considerations, we see no error in the district court’s ruling
    that Defendant’s answer on the DEA application was false as a matter of law.
    Defendant’s license had indeed been suspended, and the vacatur of the suspension order
    did not effectively remove it from historical existence and permit Defendant to state that
    -36-
    his license had never been suspended. We pause to note that, just as before, this holding
    does not prevent Defendant from contesting the mens rea element of the offense: he
    remains free on retrial to again attempt to convince the jury that he honestly, albeit
    mistakenly, believed his answer was true based on the vacatur of his suspension.
    However, our holding that his answer was in fact false as a matter of law will remain the
    law of the case on remand. See United States v. Monsisvais, 
    946 F.2d 114
    , 115 (10th Cir.
    1991) (“The law of the case doctrine posits that when a court decides upon a rule of law,
    that decision should continue to govern the same issues in subsequent stages in the same
    case.” (internal quotation marks omitted)).
    Finally, we dismiss as moot Defendant’s challenge to the procedural
    reasonableness of his sentence. Defendant’s arguments on this point, if credited, would
    affect only the length of his sentence. However, Defendant is no longer serving that
    sentence: he completed his term of incarceration and was released from prison in
    December 2017.3 See Fed. Bureau of Prisons Inmate Locator,
    https://www.bop.gov/inmateloc/ (last visited Apr. 27, 2018). “We cannot modify his
    sentence now that it has been completed. And we are not allowed to give him a judicial
    make-up call by shortening his supervised release term.” Rhodes v. Judiscak, 
    676 F.3d 931
    , 935 (10th Cir. 2012). Thus, because we “can no longer issue a judgment [as to
    3
    Due mainly to the complexity and size of this case, it did not go to trial
    for quite some time after Defendant was arrested. By the time his sentencing
    occurred, he had already served almost three years in pre-trial detention. This
    time was credited towards the sentence he received.
    -37-
    sentencing] that has a more-than-speculative chance of affecting [Defendant’s] rights,”
    we dismiss his sentencing arguments as moot. See id.; see also United States v. Meyers,
    
    200 F.3d 715
    , 721 n.3 (10th Cir. 2000) (en banc footnote).
    We therefore AFFIRM Defendant’s conviction on the six controlled-substance
    counts and REVERSE AND REMAND his conviction on the false-statement count. His
    challenge to the district court’s sentencing decision is DISMISSED AS MOOT.
    -38-