United States v. Donovan Dixon ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4936
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONOVAN DAVE DIXON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:16-cr-00030-D-1)
Submitted: December 12, 2019 Decided: December 20, 2019
Before AGEE and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Raymond C. Tarlton, TARLTON POLK PLLC, Raleigh, North Carolina, for Appellant.
Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant
Attorney General, Finnuala K. Tessier, Appellate Section, Criminal Division, U.S.
DEPARTMENT OF JUSTICE, Washington, D.C.; Robert J. Higdon, Jr., United States
Attorney, Jennifer May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Donovan Dave Dixon of conspiracy to unlawfully dispense and
distribute oxycodone, oxymorphone, methadone, and alprazolam, in violation of 21 U.S.C.
§§ 841(b)(1)(C), 846 (2018), and unlawfully dispensing and distributing oxycodone, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2018). The district court sentenced Dixon to
240 months’ imprisonment. On appeal, Dixon contends that the court’s jury instructions
on the substantive counts were erroneous; that the Controlled Substances Act (“CSA”), 21
U.S.C. §§ 801-904 (2018), is void for vagueness as applied to physicians; and that his
sentence is procedurally unreasonable. We affirm.
A jury instruction is not erroneous if, “in light of the whole record, [it] adequately
informed the jury of the controlling legal principles without misleading or confusing the
jury to the prejudice of the objecting party.” United States v. Miltier, 882 F.3d 81, 89 (4th
Cir.) (internal quotation marks omitted), cert. denied, 139 S. Ct. 130 (2018). In reviewing
a challenge to the jury instructions, “we do not view a single instruction in isolation,” but
instead “consider whether taken as a whole and in the context of the entire charge, the
instructions accurately and fairly state the controlling law.” United States v. Blankenship,
846 F.3d 663, 670-71 (4th Cir. 2017) (internal quotation marks omitted).
Where, as here, the defendant failed to object to the district court’s jury instructions,
we review only for plain error. United States v. Cowden, 882 F.3d 464, 475 (4th Cir. 2018).
To succeed on his claim, Dixon “has the burden to show that: (1) there was error; (2) the
error was plain; and (3) the error affected his substantial rights.” Id. If Dixon makes this
showing, “we may exercise our discretion to correct the error only if the error seriously
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affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (brackets
and internal quotation marks omitted).
We conclude that the district court did not plainly err in instructing the jury. The
court’s instructions were consistent with our precedents, as well as cases from other Courts
of Appeals. See, e.g., United States v. Schneider, 704 F.3d 1287, 1296 (10th Cir. 2013);
United States v. Hurwitz, 459 F.3d 463, 475-77, 479 (4th Cir. 2006); United States v. Singh,
54 F.3d 1182, 1187 (4th Cir. 1995); United States v. Tran Trong Cuong, 18 F.3d 1132,
1137-39 (4th Cir. 1994); United States v. Rosen, 582 F.2d 1032, 1036 (5th Cir. 1978).
While Dixon relies on the Supreme Court’s decision in Gonzales v. Oregon, 546 U.S. 243
(2006), several Courts of Appeals have determined that Gonzales imposed no new
requirements to establish a violation of the CSA. See United States v. Volkman, 797 F.3d
377, 385-86 (6th Cir. 2015) (collecting cases). Accordingly, Dixon cannot establish plain
error. See United States v. Harris, 890 F.3d 480, 491 (4th Cir. 2018) (“At a minimum,
courts of appeals cannot correct an error pursuant to plain error review unless the error is
clear under current law.” (brackets and internal quotation marks omitted)); United States
v. Rouse, 362 F.3d 256, 263 (4th Cir. 2004) (recognizing, in the absence of Supreme Court
or Fourth Circuit authority, “decisions by other circuit courts of appeals are pertinent to the
question of whether an error is plain” (internal quotation marks omitted)). However, even
if the district court plainly erred, we conclude that the evidence overwhelmingly
established that Dixon’s prescription practices were not legitimate. See United States v.
Nicolaou, 180 F.3d 565, 570 (4th Cir. 1999) (holding, on plain error review, “in order for
the defense to establish that the jury misinstruction altered the outcome of the trial, it had
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to show that the proper instruction, on the same evidence, would have resulted in acquittal,
or at the very least a hung jury.”).
Dixon also contends that the CSA is unconstitutional as applied to physicians. We
review unpreserved constitutional claims for plain error. United States v. Jackson, 706
F.3d 264, 270 n.2 (4th Cir. 2013). “We consider whether a statute is vague as applied to
the particular facts at issue, for a [defendant] who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”
United States v. Jaensch, 665 F.3d 83, 89 (4th Cir. 2011) (brackets and internal quotation
marks omitted). Given Dixon’s flagrant conduct in this case, we conclude that Dixon
cannot establish that the CSA is vague as applied to him. Moreover, we have previously
rejected a similar as-applied challenge, as have several other Courts of Appeals. See, e.g.,
United States v. Orta-Rosario, 469 F. App’x 140, 143-44 (4th Cir. 2012) (No. 10-4684);
United States v. Birbragher, 603 F.3d 478, 488-89 (8th Cir. 2010); United States v. Lovern,
590 F.3d 1095, 1103 (10th Cir. 2009); United States v. DeBoer, 966 F.2d 1066, 1068-69
(6th Cir. 1992); United States v. Rosenberg, 515 F.2d 190, 197-98 (9th Cir. 1975); United
States v. Collier, 478 F.2d 268, 270-72 (5th Cir. 1973). Thus, Dixon cannot establish plain
error. See Rouse, 362 F.3d at 263; see also United States v. Garcia-Lagunas, 835 F.3d
479, 496 (4th Cir. 2016) (noting that unpublished Fourth Circuit case contradicting
appellant’s argument “suggests that even if the district court erred, such error was not
plain”).
Finally, Dixon argues that his sentence is procedurally unreasonable because the
district court relied on a clearly erroneous fact—the Government’s assertion that Dixon’s
conduct killed someone. We review a defendant’s sentence “under a deferential abuse-of-
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discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Under the Gall
standard, a sentence is reviewed for both procedural and substantive reasonableness. Id. at
51. In determining procedural reasonableness, we consider whether the district court
properly calculated the defendant’s advisory Sentencing Guidelines range, gave the parties
an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2018) factors, relied on any clearly erroneous facts, and sufficiently explained the selected
sentence. Id. at 49-51.
We discern no procedural error. The Government admitted that it did not introduce
any evidence in the record specifically linking Dixon to any deaths. However, the expert
witness testified that the dosage of oxycodone that Dixon prescribed could have killed an
individual who did not have an opioid tolerance. The district court relied on this specific
testimony in stating that Dixon’s conduct could have resulted in someone dying. While
Dixon argues that the fact that his sentence matches the mandatory minimum for a
controlled substance offense resulting in death demonstrates the district court was
persuaded by the Government’s argument, his sentence (within the advisory Guidelines
range) was also the statutory maximum sentence on Count 1. Thus, we conclude that the
length of Dixon’s sentence does not show that his sentence was influenced by the
Government’s argument.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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