UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4314
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OLEN TYRONE SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-03-210-WDQ)
Submitted: May 25, 2005 Decided: July 13, 2005
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Francis A. Pommett, III, LAW OFFICE OF NATHANSON & POMMETT, P.C.,
Baltimore, Maryland, for Appellant. Allen F. Loucks, United States
Attorney, George L. Russell, III, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Following a jury trial, Olen Tyrone Smith was convicted
of possession with intent to distribute phentermine, in violation
of 21 U.S.C. § 841(a)(1) (2000), and interference with commerce by
threats or violence, in violation of 18 U.S.C. § 1951(a) (2000).
The district court sentenced Smith under the federal sentencing
guidelines to 36 months incarceration on the § 841(a) conviction
and a concurrent 71 months in prison for the § 1951(a) offense.
The court also ordered Smith to pay restitution in the amount of
$33,500. On appeal, Smith asserts that the district court erred by
refusing to give his requested jury instructions and also erred in
determining his sentence. For the reasons that follow, we affirm
Smith’s convictions, but vacate and remand for resentencing.
Smith was employed by Doctor Robert Keenan, who owned the
Elite Weight Management Center in Towson, Maryland. As part of
weight loss programs, physicians prescribe phentermine, a mild form
of amphetamine, to their patients as an appetite suppressant.
Dr. Keenan was registered with the Attorney General’s Office and
the Drug Enforcement Administration under 21 U.S.C. § 822 (2000),
and authorized to possess and prescribe phentermine, which is a
Schedule IV controlled substance.
Dr. Keenan owned an encapsulating machine, which was used
to create phentermine gelatin capsules from bulk phentermine. As
part of his job, Smith would take bulk phentermine from
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Dr. Keenan’s office in Towson to Alpha Bio-Science Center in
Baltimore City, where the encapsulating machine was kept. There,
Smith would encapsulate the phentermine with the assistance of
Robin Williams, the manager of Alpha Bio-Science.
At some point, Smith began to encapsulate phentermine for
another doctor, Dr. Strowhouer, using Dr. Keenan’s machine without
his authorization. Dr. Ladden, an employee of Dr. Strowhouer,
traveled from Media, Pennsylvania, to Baltimore City with bulk
phentermine to be encapsulated. Smith performed the encapsulation
of phentermine for Dr. Strowhouer on five occasions.
Dr. Keenan discovered that Smith was using his machine to
encapsulate phentermine for Dr. Strowhouer without his consent and
confronted Smith. As retaliation, Dr. Keenan instructed Smith to
“get their next batch.”
On December 19, 2002, Dr. Ladden brought five kilograms
of bulk phentermine to Alpha Bio-Science to be manufactured into
capsules. Smith performed the encapsulation and Dr. Ladden bottled
the resulting 167,000 phentermine capsules into labeled bottles.
He placed the bottles into cardboard boxes.
Smith and his cousin picked up the boxes and carried them
outside to the parking lot. Dr. Ladden testified that he believed
that Smith was taking the phentermine to Dr. Ladden’s car.
Instead, Smith and his cousin placed the boxes in Smith’s vehicle.
Williams yelled to Smith, telling him, “that’s not where
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they go.” Smith responded with a demand for more money. Williams
put his hands on Smith to stop him, and Smith pushed him with a box
back though the doorway and into some steel drums.
Dr. Ladden testified that Smith’s cousin was standing
near Smith’s car and had his hand in his coat pocket as if he had
a gun. Once the boxes were loaded, Smith’s cousin left Alpha Bio-
Science and took the pills to Smith’s house, where they remained in
Smith’s car until the next day when Smith delivered them to Dr.
Keenan. Dr. Keenan paid Smith $5000 for the capsules.
Smith contends that the district court erred in its
instructions to the jury as to the exception in 21 U.S.C. § 822(c),
for possession of a controlled substance in the course of
employment by an employee of a person authorized and registered to
possess such substance. He also asserts that the court erred in
refusing to instruct the jury as to a required nexus between the
use of force or violence or threat of injury and the taking of
property under § 1951. This court’s review of jury instructions is
for an abuse of discretion. United States v. Patterson, 150 F.3d
382, 387-88 (4th Cir. 1998); United States v. Brooks, 928 F.2d
1403, 1408 (4th Cir. 1991). The district court’s instructions will
be upheld “provided the instructions, taken as a whole, adequately
state the controlling law.” Teague v. Bakker, 35 F.3d 978, 985
(4th Cir. 1994).
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Section 822 requires persons who manufacture, distribute,
or dispense any controlled substance to obtain a registration and
authorization from the Attorney General. 21 U.S.C. § 822(a), (b).
An exception to the registration requirements provides that “[a]n
agent or employee of any registered manufacturer, distributor, or
dispenser of any controlled substance [may lawfully possess a
controlled substance] if such agent or employee is acting in the
usual course of his business or employment.” 21 U.S.C. § 822(c).
The instruction given by the court explained this
exception and summarized:
If you find that Mr. Smith, one, was an agent
or employee of a person registered under the
act at the time of his possession, and, two,
that he was acting in the course of his
employment for that registered person, and,
three, that his conduct was in furtherance of
the usual course of the registrant’s lawful
professional practice, then you must find the
defendant not guilty of count one of the
indictment.
Smith contends that the court erred in adding the third
requirement—that the conduct needed to be “in furtherance of the
usual course of the registrant’s lawful professional practice” in
order for the jury to find that Smith’s possession of the
phentermine was lawful under § 822. He argues that his theory of
defense was that he was employed by Dr. Keenan and acting pursuant
to his instructions when he took the phentermine capsules from
Dr. Strowhouer. He asserts that he was therefore lawfully in
possession of the controlled substance and cannot be convicted of
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possession with intent to distribute under 21 U.S.C. § 841(a). See
21 U.S.C. § 822(c).
By adding the requirement that Smith’s “conduct was in
furtherance of the usual course of the registrant’s lawful
professional practice” in order that the jury find him not guilty,
Smith contends that the court misstated the law and allowed the
jury to convict him even if he did not know that Dr. Keenan’s
instructions and directions were unlawful and even if he believed
that he was acting “in the usual course of his business or
employment.” See United States v. Lewis, 53 F.3d 29, 32 (4th Cir.
1995).
To qualify under the employee or agent exception to
registration under § 822, the person must be employed in the
“legitimate distribution chain” of the controlled substance. See
United States v. Pruitt, 487 F.2d 1241, 1244 (8th Cir. 1973). Any
possession or distribution outside of the legitimate distribution
chain is unlawful. United States v. Vamos, 797 F.2d 1146, 1151-52
(2d Cir. 1986). Thus, if the possession is not in the “usual
course of the registrant’s lawful professional practice,” then it
is not in the legitimate chain of possession and therefore not
within the § 822(c) exception. See United States v. Hill, 589 F.2d
1344, 1350 (8th Cir. 1979) (holding that mere fact that defendant
was employee of company registered to possess and distribute
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controlled substances does not make otherwise unlawful conduct
lawful).
Here, Smith was directed by his employer to take the
phentermine capsules from Dr. Strowhouer without his consent. This
taking resulted in Smith’s possession of the phentermine outside
the legitimate chain of distribution. We find that the district
court’s instructions, “taken as a whole, adequately state the
controlling law.” Teague, 35 F.3d at 985. Thus, the court’s
inclusion of the requirement that the conduct be “in furtherance of
the usual course of the registrant’s lawful professional practice”
does not amount to an abuse of discretion. Id.
Smith also challenges the court’s refusal to instruct the
jury as to a nexus requirement between the taking of the property
and the threat or use of force under 18 U.S.C. § 1951(a). Smith
requested that the court include this instruction:
There must be a nexus between the taking of
the property and the threat or use of force.
The use or threat of force subsequent to the
taking of the goods does not constitute
robbery.
In proposing this instruction, Smith cited United States v. Smith,
156 F.3d 1046, 1056 (10th Cir. 1998), in which the Tenth Circuit
held that a threat or force or injury that occurred in the escape,
rather than during the taking of the property, was insufficient to
show that the taking was accomplished by means of force or threats.
Id. at 1056.
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The court did not give this instruction, but instructed
the jury that “[r]obbery is the unlawful taking or obtaining of
personal property of another against his will by means of actual or
threatened force, violence, or fear of injury immediately or in the
future to person or property.” The court also explained that the
taking of the property must be “by means of actual or threatened
force, violence, or fear of injury.” The court added, “[a]s I have
instructed you, you must determine whether the defendant knowingly
and willfully threatened to use force, violence or fear to
unlawfully obtain the property.”
Smith asserts that any force or injury that occurred in
this case occurred in the escape, rather than during the taking of
the property, and thus the evidence was insufficient to show that
the taking was accomplished by means of force or violence. See
Smith, 156 F.3d at 1056. We find that the court’s instructions, as
a whole, adequately stated the controlling law. See Teague, 35
F.3d at 985. Smith’s contention that the jury could have found
that he pushed Williams after the taking of the property, is belied
by Smith’s own testimony. Notably, Smith testified that he pushed
Williams while he was in the act of placing the boxes of
phentermine capsules in his vehicle:
I loaded the other two [boxes] into the
truck. As I was putting them down, Robin
Williams grabbed me on my shoulder.
Q. And what, if anything, did you then do?
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A. I told Robin to get his hands off of me
and that if I have got to - - If I have
to turn around, it’s going to be
problems.
Robin Williams still grabbed my shoulder
and said, “No. What are you doing. You
can’t do this.” And then, from there, I
proceeded to turn around, and I shoved
him.
Additionally, Smith admits, in his appeal brief, that he “pushed
[Williams] with a box back through the doorway into some steel
drums.” (Appellant’s Br. at 6). In light of these admissions, we
conclude that the requested instruction was not required by the
evidence. Thus, we find that the district court’s refusal to give
Smith’s nexus instruction was not an abuse of discretion. See
Teague, 35 F.3d at 985. Accordingly, we affirm Smith’s
convictions.
Citing United States v. Booker, 125 S. Ct. 738 (2005),
Smith argues for the first time on appeal that his sentence is
unconstitutional because it was based on facts that were neither
charged in the indictment nor found by the jury beyond a reasonable
doubt. In Booker, the Supreme Court held that the federal
sentencing guidelines’ mandatory scheme—which provides for
sentencing enhancements based on facts found by the court—violated
the Sixth Amendment. Id. at 746 (Stevens, J., opinion of the
Court). The Court remedied the constitutional violation by making
the guidelines advisory through the removal of two statutory
provisions that had rendered them mandatory. Id. at 746 (Stevens,
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J., opinion of the court); id. at 756-57 (Breyer, J., opinion of
the Court). In United States v. Hughes, 401 F.3d 540 (4th Cir.
2005), this court held that a sentence enhanced based on facts
found by the court, rather than upon facts found by the jury or
admitted by the defendant, constitutes plain error that affects the
defendant’s substantial rights and warrants reversal. Id. at 547-
48 (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).
In light of Booker and Hughes, we find that the district
court plainly erred in imposing a sentence under the federal
sentencing guidelines as they existed prior to Booker.1 Therefore,
although we affirm Smith’s convictions, we vacate his sentence and
remand for proceedings consistent with Hughes.2 Id. at 546 (citing
Booker 125 S. Ct. at 764-65, 767 (Breyer, J., opinion of the
1
As we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of course
offer no criticism of the district judge, who followed the law and
procedure in effect at the time” of Smith’s sentencing. See
generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
2
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767. On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C. § 3553(a)
and then impose a sentence. Id. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C. § 3553(c)(2). Id. The sentence
must be “within the statutorily prescribed range and . . .
reasonable.” Id. at 547.
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Court)). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
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